dismissed H-1B Case: Electrical Engineering

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
h "7- 
FILE: WAC 03 128 53 172 Office: CALIFORNIA SERVICE CENTER Date: ,a et -. - 2": 203~ 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. tj 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Ths 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. 
Administrative Appeals Office 
WAC 03 128 53172 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a construction company that seeks to employ the beneficiary as an electrical engineer and to 
classify him as a nonirnrnigrant worker in a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 101(a)(l5)(H)(i)(b). 
The director denied the petition because the proposed position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 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&)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be perfonned only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties is so specialized and complex that knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
$ 214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific specialty that is 
directly related to the proposed position. 
The record of proceeding before the AAO contains: (1) Form 1-129 with supporting documentation, 
including a company support letter; (2) the director's request for additional evidence (WE); (3) the 
petitioner's response to the WE, including the beneficiary's original college transcripts; (4) the director's 
denial letter; and (5) Form I-290B with brief and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 03 128 53172 
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The petitioner is seeking the beneficiary's services as an electrical engineer. Evidence of the beneficiary's 
duties includes the Form 1-129 with attachments, including the company support letter and the petitioner's 
response to the RFE. According to this evidence, the beneficiary would perform duties that entail: 
researching and analyzing specifications to determine the best method of the design of 
electrical equipment, facilities, components, products, and systems for the petitioner's 
purposes; 
designing systems and controls; 
insuring the installation proceeds in accordance with engineering design and 
specifications; 
coordinating operations, maintenance and repair activities to obtain optimum utilization 
of systems; 
developing applications of controls, instruments, and systems for the petitioner's uses; 
directing activities to ensure that manufacturing, construction, installation, and 
operational testing conform to functional specifications and requirements; and 
directing and coordinating operation, maintenance, and repair of equipment and 
systems. 
The director requested that the petitioner submit the following: a detailed job description including specific 
duties, the percentage of time to be spent on each duty, level of responsibility, holxs per week of work; an 
explanation of why the work requires a person with a college degree; an exact description of the systems and 
equipment the beneficiary would be worlung with; evidence that the position meets one of the specialty 
occupation criteria; copies of present and past job announcements for the proposed position; and the 
beneficiary's original college transcripts. 
In response, the petitioner submitted the beneficiary's original college transcripts, a job description similar to 
the one originally provided, an explanation of why the proposed position is a specialty occupation, and five 
job announcements for electrical engineers at other businesses. 
The director concluded that the position was more like that of an electrician than of an electrical engineer, and 
that the occupation of electrician is not a specialty occupation. The director pointed to a brochure the 
petitioner submitted that showed that the petitioner employed an electrician but no electrical engineer. 
On appeal, counsel states that the proposed position is that of an electrical engineer - a specialty occupation. 
The petitioner further asserts that, due to its expanding business, it now requires the services of an electrical 
engineer, when it did not in the past. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 2 14.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
To determine 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 highly specialized knowledge and the attainment 
of a bachelor's degree in a specific field of study as the minimum for entry into the occupation. 
WAC 03 128 53172 
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The MO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for its 
information about the duties and educational requirements of particular occupations. A review of the job 
descriptions for electricians and electrical engneers in the Handbook reveals that the proposed job duties are 
most closely aligned with those of an electrician worlung for a residential and commercial construction 
company, such as worlung with blueprints to wire a building's electrical system, and installing, maintaining and 
repairing electrical equipment. The duties that the Handbook describes for electrical engmeers, who "design new 
products, write performance requirements, and develop maintenance schedules," materially exceed the duties 
proposed for the beneficiary. In thls regard, it is noted that the petitioner provided no examples of, or concrete 
details about, the electrical design work cited in the list of proposed duties. The petitioner provides no concrete 
details from which the MO can conclude that any of the proposed duties requires at least a bachelor's degree in 
electrical engineering or a related specialty. 
Counsel asserts that the proposed position is that of an electrical engineer. In order to substantiate this, 
counsel submits the entries fi-om the Handbook for electricians and electrical engineers and a list of references 
for electrical projects the petitioner has completed, including work on several schools, a government agency, 
and a commercial building. These documents do not support counsel's assertion that the proposed position is 
more like an electrical engineer and less like an electrician. The Handbook entries merely describe the 
different duties that electricians and electrical engineers perform. They do not independently establish that 
the proposed position is that of an electrical engineer. The list of references for completed electrical projects 
also does not support counsel's assertion. If anything, the list confirms that the petitioner has been able to 
complete projects with the electrician it already has on staff and in no way substantiates the need to hire a 
full-time electrical engineer. Counsel asserts that the petitioner needs an electrical engineer because of an 
increased number of projects it intends to work on. This increase in the volume of work the petitioner 
anticipates might justify the need to hire another electrician, in addition to the one already on staff. It does 
not reflect a change in the nature of petitioner's work that might give rise to the need to hire an electrical 
engineer. Thus, the documentation that counsel has submitted is not probative. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do nod constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
To determine whether the proposed position qualifies as a specialty occupation, the AAO first turns to the 
criteria at 8 C.F.R. 214.2(h)(4)(iii)(A)(l) - a bachelor's or higher degree or its equivalent is normally the 
minimum requirement for entry into the particular position. To determine whether or not this criterion has 
been established, the AAO turns to the Handbook's discussion of the educational requirements for 
electricians. No evidence in the Handbook indicates that a bachelor's or higher degree, or its equivalent, is 
required for a job as an electrician. Instead, it appears that individuals with proven electrical skills may be 
hired solely on the basis of training or experience. The Handbook also indicates that, under the supervision of 
experienced electricians, apprentices learn to install, connect, and test wiring, outlets, and switches, as well as 
set up and draw diagrams for entire electrical systems. As a result, the proposed position does not qualify as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). 
The AAO turns next to the first alternative prong of the second criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. To determine if a position is a specialty occupation under this criterion, CIS generally 
considers whether or not letters or affidavits from companies or individuals in the industry attest that such 
WAC 03 128 53172 
Page 5 
companies "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 
1 15 1,1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The five internet job announcements provided by the petitioner do not support the proposition that the residential 
and commercial construction industry requires that their electricians hold bachelor's degrees in electrical 
engineering or related fields. 
Despite counsel's assertion that the advertisers are "companies like the [pletitioner," four of the announcements 
were issued by a variety of employers outside the construction industry, including a heavy industrial power plant, 
a defense and aerospace systems supplier, and an industrial x-ray scanner manufacturer. The fifth announcement 
was issued by a firm devoted entirely to electrical engineering consulting. None of these announcements support 
the contention that it is an industry-wide practice for construction companies, similar in size and scope to the 
petitioner's, to require a bachelor's degree in electrical engneering for positions that are substantially similar to 
the one proposed here. In any event, the number of job announcements is insufficient to establish an industry- 
wide practice. Therefore, the proposed position does not qualify as a specialty occupation under the first 
alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2). 
The AAO now turns to the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) - the employer normally requires at 
least a bachelor's degree or its equivalent, in a specific field of study, for the position. To determine whether a 
petitioner has established this criterion, the AAO generally reviews the petitioner's past employment 
practices, including the histories of those employees who previously held the position, as well as their names, 
dates of employment, and copies of their diplomas. In the instant case, the petitioner suggests it recently 
created the proposed position due to an increase in business. The petitioner is therefore unable to provide 
evidence to establish its normal hiring practices for the proposed position. In the absence of an employment 
history for the proposed position, the petitioner failed to establish that the position qualifies as a specialty 
occupation under the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(3). 
The evidence of record does not establish either that this particular position is so complex or unique that it can 
be performed only by an individual with a degree (so as to satisfy the second alternative criterion of 8 C.F.R. 
$ 214.2(h)(4)(iii)(A)(2)), or that the specific duties are so specialized and complex that their performance 
requires knowledge usually associated with at least a bachelor's degree in a specific specialty (so as to satisfy 
the criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4)). The evidence of record does not indicate that the proposed 
position is unique from or more complex than the usual range of electrician positions, which the Handbook 
indicates are performed by persons without a bachelor's degree in electrical engineering or any related 
specialty. Therefore, the petitioner has not satisfied the second alternative criterion of 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2). The petitioner has also failed to demonstrate duties so specialized and complex as to 
be normally associated with a bachelor's or higher degree in a specific specialty, as required by 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(4). The evidence of record does not establish that the duties of the proposed position are 
more specialized and complex than electrician duties, which, as the Handbook indicates, are not normally 
associated with at least a bachelor's degree in any specific specialty. Counsel does not point to any of the 
proposed duties to show that they are not those of an electrician but of an electrical engineer. Counsel 
submits no evidence to establish that the proposed duties are different than those of other electricians that 
work for residential and commercial construction companies similar to the petitioner's. The Handbook 
indicates that electricians routinely learn the electrical trade by completing a 4- or 5-year apprenticeship 
program where they measure, fabricate, and install conduit, as well as install, connect, and test wiring, outlets, 
WAC 03 128 53172 
Page 6 
and switches, and learn to draw diagrams for entire electrical systems. Counsel's unsupported claim of 
qualifying specialization and complexity is insufficient to meet the burden of proof that the position meets the 
criteria based on the complexity of its duties alone. Matter of Obaigbena. 
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.