dismissed H-1B Case: Engineering

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U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 001 52835 Office: CALIFORNIA SERVICE CENTER Date: F Le 1 6 20@ 
IN RE: 
PETITION: 
 Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 lOl(a)(lS)(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. 
~dministrative Appeals Office 
WAC 04 001 52835 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a staffing company that seeks to employ the beneficiary as a test engineer (quality control). 
The petitioner 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 lOl(a>( 15>(H>(i)(b>. 
The director denied the petition because the petitioner did not establish that the proffered position was a 
specialty occupation. The director also stated that the petitioner had not complied with the terms of its 
previously approved petitions. On appeal, the petitioner submits a letter. 
Section 214(i)(l) of the Immigration and Nationality Act (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. 5 214.2(h)(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 performed only by an individual with a degree; 
(3) 
 The employer normally requires a degree or its equivalent for the position; or 
(4) 
 The nature of the specific duties is so specialized and complex that knowledge required to 
perform the duties is usually associated with the attainment of a baccalaureate or higher 
degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
$ 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 
WAC 04 001 52835 
Page 3 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a test engineer (quality control). Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's September 18, 2003 letter in support of the 
petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: directing all activities to ensure that installation and operational 
testing conform to functional specifications and customer requirements; directing and coordinating the 
operation, preventive maintenance and repair of equipment; performing electrical testing regarding the 
transmissions and distribution systems on generators, transformers, and other electrical devices; and 
documenting the results of tests for quality control. The petitioner indicated that a qualified candidate for the 
job would possess a bachelor's degree in electrical or mechanical engineering or a related engineering field. 
The director found that the proffered position was not a specialty occupation. The director found further that 
the petitioner failed to establish any of the criteria found at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states that it would be the actual employer of the beneficiary. The petitioner also 
states that its record of filing numerous petitions relates to its business of staffing other organizations, and that 
it has a high turnover rate. The petitioner further asserts that its previous petition on behalf of the same 
beneficiary was approved, and that other petitions, which were identical to the current petition, were 
approved, as well. 
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. 
The AAO turns first to the criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(l) 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 Department of Labor's 
Occupational Outlook Handbook (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 
fm or individuals in the industry attest that such fm "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. Suva, 712 
F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. 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 duties of the 
proffered position are most like an engineer, but the petitioner has not provided enough detail about the 
WAC 04 001 52835 
Page 4 
position to establish that the beneficiary would actually be working in an engineering position or what the 
beneficiary would do in that position on a daily basis. 
The issue is not whether an engineer is a specialty occupation, because it normally is, but whether the 
petitioner has established that the beneficiary would actually be performing the duties of an engineer. A 
petitioner cannot establish its employment as a specialty occupation by describing the duties of that 
employment in the same general terms as those used by the Handbook in discussing an occupational title. 
This type of generalized description is necessary when defining the range of duties that may be performed 
within an occupation, but cannot be relied upon by a petitioner when discussing the duties attached to specific 
employment. In establishing a position as a specialty occupation, a petitioner must describe the specific 
duties and responsibilities to be performed by a beneficiary in relation to its particular business interests. 
The AAO notes that in his request for evidence, the director stated that the petitioner was requested to provide 
a "detailed description of the work done, including specific job duties, the percentage of time to be spent on 
each duty, [and] level of responsibility." The petitioner responded with a similar job description to the one 
submitted with the petition and in its letter of support. Since the petitioner has offered no description of the 
duties of its proffered position beyond the generalized outline it provided at the time of filing, it has not 
established it will employ the beneficiary as an engineer; it cannot, therefore, establish that the position meets 
any of the requirements for a specialty occupation set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The petitioner submitted several Internet job postings for test engineers. There is no evidence, however, to 
show that the employers issuing those postings are similar to the petitioner's client, or that the advertised 
positions are parallel to the instant position. There is no evidence in the record regarding the petitioner's 
client, its industry or its need for a test engineer. As noted previously, an engineer would generally be 
considered a specialty occupation, but the petitioner has not established that the beneficiary would be 
performing the duties of a specialty occupation. Thus, the advertisements have little relevance. The record 
does not include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. The issue is not what the petitioner requires, but what the client requires. 
There is no evidence in the record regarding the petitioner's client's past hiring practices. In Defensor v. 
Meissner, 201 F. 3d 384 (5" Cir. 2000), the court held that the Immigration and Naturalization Service, now CIS, 
reasonably interpreted the statute and the regulations when it required the petitioner to show that the entities 
ultimately employing the foreign employees require a bachelor's degree for all employees in that position. The 
court found that the degree requirement should not originate with the employment agency that brought the aliens 
to the United States for employment with the agency's clients. 
The record does not contain a comprehensive description of the beneficiary's proposed duties from an 
authorized representative of the client. Without such a description, the petitioner has not demonstrated that the 
work that the beneficiary will perform for the client will qualify as a specialty occupation, nor what the 
client's requirements are for an individual filling the proffered position. 
WAC 04 001 52835 
Page 5 
Finally, the AAO turns to the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4) - the nature of the specific duties is 
so specialized and complex that knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. As noted above, the position description lacks detail about how the beneficiary would 
perfom this position; therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(#). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The petitioner noted that CIS approved the previous petition that had been previously filed on behalf of the 
beneficiary, as well as other petitions for identical positions. The director's decision does not indicate 
whether he reviewed the prior approvals of the other nonirnmigrant petitions. If the previous nonirnmigrant 
petitions were approved based on the same unsupported and contradictory 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 prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 
I&N Dec. 593, 597 (Cornm. 1988). 
 It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomely, 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 the court of 
appeals and the district court. Even if a service center director had approved the nonirnmigrant 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.), aff'd 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
An H-1B alien is coming temporarily to the United States to perform services in a specialty occupation. 
Section lOl(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. $ lOl(a)(lS)(H)(i)(b). 8 C.F.R. $ 214.2(h)(l)(ii)(B). In this 
case, the petitioner did not establish that the beneficiary would be coming to the United States to perform 
services in a specialty occupation. 
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.