dismissed H-1B Case: Electrical Engineering

identieing dats &!eta! to 
pxevent clearly unwarranted 
invasion of persona1 privacy 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC CQPY 
FILE: WAC 03 261 501 87 Office: CALIFORNIA SERVICE CENTER Date: RAR 2 8 "of, 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(] 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 1 Ol(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 261 50187 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a nursing facility that seeks to employ the beneficiary as an electrical engineer. 
 The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a)( 15)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief.' 
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. 
Pursuant to 8 C.F.R. 
 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(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. 
' The California State Bar website indicates that 
 to practice law was placed on inactive 
and that as of February 17,2006, 
 is not eligible to practice law. The AAO 
will refer t 
 as "counsel" in this proceeding. 
WAC 03 26 1 50 187 
Page 3 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
fj 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as an electrical engineer. Evidence of the beneficiary's 
duties includes: the Form I- 129; the attachments accompanying the Form I- 129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: troubleshooting defective units to the component level of the 
facility; supervising the installation of equipment, cabling, and wiring of the office and facility; writing 
performance requirements and developing maintenance schedules for electrical projects; estimating the time 
and cost of electrical engineering projects, including equipment testing and solutions to operating problems; 
conducting research and developing and designing electrical components and systems; directing engineering 
personnel in fabricating test control apparatus and equipment, and determining implementation methods and 
procedures. The beneficiary will be involved with the interrelationships of circuits and components in 
equipment, and will be responsible for power distribution coordination, management of switchgear and relay 
operations, electronics design, and troubleshooting console and related hardware. The beneficiary will handle 
electrical projects, directing field operations and the maintenance of electronic installation for construction 
projects. The petitioner's response to the request for evidence elaborated on the proposed duties. For the 
proposed position, the petitioner requires a bachelor's degree in electrical engineering. 
The director denied the petition, finding that the customary needs of a nursing home facility are normally 
tended to by electrical technicians who do not possess a baccalaureate degree in engineering. The director 
concluded that the evidence submitted failed to satisfy one of the criteria at 8 C.F.R. fj 214.2(h)(4)(iii)(A). 
On appeal, counsel asserts that the proposed position is that of an electrical engineer and that the Department 
of Labor's Occupational Outlook Handbook (the Handbook) and the Dictionary of Occupational Titles 
(DOT) substantiate his assertion. Counsel refers to Internet printouts and the America Career Internet website 
to show that an electrical engineer requires a bachelor's degree. According to counsel, two healthcare 
facilities attest to employing an electrical engineer. Counsel states that it is common in the healthcare service 
industry to require a bachelor's degree for an electrical engineering position, and refers to Internet job 
postings to support this statement. Counsel contends that the petitioner is part of a conglomerate of 17 
healthcare facilities, all of which are expanding, and points to exhibit F, which is a list of healthcare facilities 
"under the petitioner's wing." Counsel states that the beneficiary has played a role in the improvement of the 
petitioner's facility, and that he will assist in expansion plans and programs. According to counsel, the 
beneficiary has proposed four projects: material handling systems integration, rapid project execution, 
operational enhancement, and integrated systems. Counsel discusses submitted articles. 
WAC 03 261 501 87 
Page 4 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
$ 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
Counsel noted that CIS approved another petition that had been previously filed by the petitioner on behalf of 
the beneficiary. The director's decision does not indicate whether he reviewed the prior approval of the other 
nonimmigrant petition. If the previous nonimmigrant petition was approved based on the same assertions that 
are contained in the current record, the approval would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of a prior approval that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988) 
Furthermore, the AAO's 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 the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), agd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The prior approval does not preclude CIS from denying an extension of the original visa petition based on a 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). 
The AAO first considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria include: whether the Handbook reports that the industry 
requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Znc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. The AAO routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. 
The Handbook describes an electrical engineer as follows: 
WAC 03 261 50187 
Page 5 
Electrical engineers design, develop, test, and supervise the manufacture of electrical 
equipment. Some of this equipment includes electric motors; machinery controls, lighting, 
and wiring in buildings; automobiles; aircraft; radar and navigation systems; and power- 
generating, -controlling, and transmission devices used by electric utilities. Although the 
terms "electrical" and "electronics" engineering often are used interchangeably in academia 
and industry, electrical engineers have traditionally focused on the generation and supply of 
power, whereas electronics engineers have worked on applications of electricity to control 
systems or signal processing. Electrical engineers specialize in areas such as power systems 
engineering or electrical equipment manufacturing. 
An electrical engineer is a specialty occupation, normally requiring at least a bachelor's degree in electrical 
engineering. Although the petitioner has identified its position as that of an electrical engineer, its description 
of the beneficiary's duties lacks the specificity and detail necessary to substantiate the petitioner's contention. 
The petitioner failed to convey a detailed description of the beneficiary's duties as they relate to the 
petitioner's business operations. The duties are described in general terms; they are not depicted in a context 
that would convey the particulars of the engineering activities associated with a nursing facility. For example, 
as described by the petitioner, the beneficiary will be responsible for "electrical projects"; handle "testing of 
equipment"; "supervise the installation of equipment"; "research, develop and design electrical components 
and systems"; direct personnel in the "fabrication of test control apparatus and equipment"; and be 
responsible for "power distribution coordination, management of switchgear and relay operations." The AAO 
observes that the petitioner does not describe in any detail the "equipment" or "electrical projects" that the 
beneficiary will be responsible for; does not amplify on the "electrical components and systems" that the 
beneficiary will research, develop, and design; and does not explain the "power distribution coordination, 
management of switchgear and relay operations" that the beneficiary will be involved with. On appeal 
counsel briefly describes four projects, material handling systems integration, rapid project execution, 
operational enhancement, and integrated systems, proposed by the beneficiary. Given the brevity of the 
project descriptions, the AAO cannot determine what each project will entail and what the beneficiary's role 
on the projects would involve. For example, the rapid project execution is described as creating faster 
implementation "through the design and implementation of complex integrated systems that may be executed 
in less time." The "complex integrated systems" is not described in any manner. CIS must examine the 
actual employment of a beneficiary, which are the specific tasks to be performed by the beneficiary, to 
determine whether a position qualifies as a specialty occupation. In light of the generic job description 
offered here, the AAO cannot identify the beneficiary's specific tasks, and thereby, whether the position is 
that of an electrical engineer. A petitioner cannot establish that a position is a specialty occupation by 
describing the duties of that employment in general terms that do not relate the position to the petitioner's 
specific business operations. Furthermore, without a reliable description of the position's duties, the AAO is 
unable to determine whether the performance of those duties meets the statutory definition of a specialty 
occupation. 
Counsel contends that the petitioner is part of a conglomerate of 17 healthcare facilities, all of which are 
expanding, and refers to exhibit F, a list of healthcare facilities "under the petitioner's wing." The submitted 
evidence does not support counsel's contention as the Form 1-129 petition and the tax records do not reflect 
WAC 03 261 50187 
Page 6 
that the healthcare facilities are "under the petitioner's wing." The statements of counsel on appeal or in a 
motion are not evidence and thus are not entitled to any evidentiary weight. See INS vs. Phinpathya, 464 U.S. 
183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
The AAO concludes that, based on the submitted evidence, the proposed position differs from that of an 
electrical engineer. Thus, the petitioner fails to establish the first criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A): 
that a baccalaureate or higher degree or its equivalent in a specific specialty is the normal minimum 
requirement for entry into the particular position. 
The submitted job postings and letters from two healthcare facilities fail to establish the first alternative prong 
at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(2), which is that a specific degree requirement is common to the industry in 
parallel positions among similar organizations. Aerotek Contract Engineering is a staffing agency, thus it 
differs in nature from the petitioner, a nursing facility. Comforce is not described in the posting; therefore, 
the AAO cannot determine whether it is similar in nature to the petitioner. The Doheny Eye Institute position 
involves designing, developing, and implementing medical devices for opththalmic/optical microsurgery 
products; thus, the duties differ from those of the proposed position. Unlike the proposed position, the 
posting for a senior electrical engineer requires licensure. 
The letters from doing business as 
attest that for positions in finance/accounting, management, engineering, human resources, marketing and 
information systems the minimum hiring requirement is a bachelor's degree in the related field. The letters 
are not persuasive in establishing an industry standard, as they do not describe the duties of an engineer 
position. Thus, the AAO cannot determine whether the engineer positions in the letters are similar to the 
proposed position. Moreover, two letters is insufficient to establish an industry-wide standard of employing 
an electrical engineering with a bachelor's degree. 
On appeal, counsel states that exhibit G shows that healthcare companies seek the services of consulting firms 
for electrical engineering projects. The articles that comprise exhibit G discuss engineering consulting firms 
that specialize in the construction of healthcare facilities. These articles do not relate to the proposed position 
since the beneficiary is not required to possess a professional engineer license. 
2 
For these reasons, the AAO finds that the job postings, letters, and exhibit G fail to establish the first 
alternative prong at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(2). 
While the position does not require licensure, the Handbook indicates that electrical engineering positions 
require licensure unless the work is to be performed under the supervision of a licensed engineer. The record 
does not reflect that the beneficiary will be working under the supervision of a licensed engineer. The 
petitioner requires neither licensure nor working under the supervision of a licensed engineer for the position, 
which undermines its assertion that the proffered position is an electrical engineer. 
WAC 03 261 50187 
Page 7 
The petitioner fails to establish the second alternative prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) as no evidence 
portrays the proffered position as so complex or unique that it can be performed only by an individual with a 
baccalaureate degree in electrical engineering or a related field. As discussed already, in light of the generic 
job description, the AAO cannot identify the beneficiary's specific tasks, and thereby, whether the position is 
that of an electrical engineer. The proposed position does not require an electrical engineer's license, and the 
beneficiary is not exempt from licensure as he will not work under the direct supervision of a licensed 
electrical engineer. As such, the petitioner fails to establish the second alternative prong at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). 
To establish the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) the petitioner must show that it normally 
requires a degree or its equivalent for the position. Counsel asserts that the petitioner previously employed the 
beneficiary in H-1B status as an electrical engineer. Counsel's assertion is not persuasive, however. CIS 
must examine the ultimate employment of the alien, and determine whether the position qualifies as a 
specialty occupation. C$ Defensor v. Meissner, 201 F. 3d 384 (5' Cir. 2000). The critical element is not the 
title of the position or an employer's self-imposed standards, but whether the position actually requires the 
theoretical and practical application of a body of highly specialized knowledge, and the attainment of a 
baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation as 
required by the ~ct.~ As discussed under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I), the proposed position differs from 
that of an electrical engineer, which is an occupation that qualifies as a specialty occupation. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree. As discussed earlier under 8 C.F.R. 
$ 214.2(h)(4)(iii)(A)(I), the proposed position differs from that of an electrical engineer, which is an occupation 
that qualifies as a specialty occupation. Consequently, the petitioner fails to establish this last criterion at 
8 C.F.R. 2 14.2(h)(4)(iii)(A). 
Beyond the decision of the director, the AAO finds that the beneficiary is not authorized to perform the 
services of an electrical engineer. According to the Handbook, an electrical engineer is required to possess 
proper licensure. The Handbook states: 
All 50 States and the District of Columbia require licensure for engineers who offer their 
services directly to the public. 
The California Professional Engineers Act, Business and Professions Code section 6700-6799, Chapter 7, 
Professional Engineers, Article 3, Application of Chapter, Section 6740, indicates that licensure is not 
required for: 
The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
WAC 03 26 1 50 187 
Page 8 
A subordinate to a civil, electrical or mechanical engineer registered under this chapter, or a 
subordinate to a civil, electrical or mechanical engineer exempted from registration under this 
chapter, insofar as he acts solely in such capacity, is exempt from registration under the 
provisions of this chapter. This exemption, however, does not permit any such subordinate to 
practice civil, electrical or mechanical engineering in his own right or to use the title, "civil 
engineer" or "structural engineer" or "electrical engineer" or "mechanical engineer" or "soil 
engineer." 
Section 6705 of the California Professional Engineers Act defines a subordinate as "any person who assists a 
registered professional engineer in the practice of professional engineering without assuming responsible 
charge of work." 
The record indicates that the petitioner does not require licensure for the proposed position, and the submitted 
organizational chart does not depict the beneficiary as working under the supervision of a licensed electrical 
engineer. For this additional reason, the AAO finds that the proposed duties would not qualify as those of a 
professional electrical engineer. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation or that the beneficiary is qualified to perform the services of an electrical engineer. 
Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.