dismissed H-1B Case: Exercise Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-W-U-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 27,2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a private university, seeks nonimmigrant classification of the Beneficiary as a 
temporary worker in a specialty occupation, in order to temporarily employ her in a position with the 
job title "Exercise Specialist." See Immigration and Nationality Act (INA) § 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, denied the petition. The 
matter is now before us on appeal. The appeal will be dismissed. 
The Director denied the petition, concluding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. 
The record of proceeding before us contains: (1) the Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the Petitioner's response to the RFE; (4) the notice 
of decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting materials. We 
reviewed the record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. Accordingly, the appeal will be dismissed. 
I. LEGAL FRAMEWORK 
The issue on appeal is whether the Petitioner provided 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 it is offering employment to the beneficiary that meets the 
applicable statutory and regulatory requirements. 1 
1 We apply the "preponderance of evidence" standard of review as articulated in the controlling precedent decision, 
Matter ofChawathe, 25 I&N Dec. 369,375-376 (AAO 2010). Accordingly, we have examined each piece of evidence 
for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence. 
Also, we conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter ofS-W-U-
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.P.R.§ 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.P.R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)( 4 )(iii)(A) 
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Matter of S- W- U-
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)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.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 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). ·Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-1B visa category. 
II. THE PROFFERED POSITION 
According to the Petitioner's letter of support filed with the Form I -129, the proffered position would 
be performed in the Petitioner's proposed Wellness Center "aligning the university with new 
strategic goals for promoting programs that improve the quality of life of our faculty, staff, students, 
and community." 
In response to the RFE, the Petitioner submitted what it termed an expanded position-description. 
The document provides the following "Specific Duties" in chart form, along with estimated 
expenditures of work time: 
1. Patient/Client Assessment 
a. Assesses client's risk factors that are modifiable and offers support and 
strategies to aid patient in successful therapeutic lifestyle changes (TLC). 
b. Determines and obtains the necessary physician referral and medical records to 
assess the potential participant. 
c. Performs a preparticipation health screening including review of the 
participant's medical history and knowledge, their needs and goals, the 
program's potential benefits, and additional required testing and data. 
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Matter ofS-W-U-
d. Evaluate the participant[']s risk to ensure safe participation and determine level 
of monitoring/supervision in a preventive exercise program. 
2. Exercise Prescription 
a. Leads in the supervision of individual and group exercise sessions. 
b. Develops a clinically appropriate exercise program using all available 
information (e.g. clinical and psychological status, goals, and behavioral 
assessment). 
c. Reports pertinent information concerning clients to the Wellness Program 
Supervisor and other appropriate professional staff. 
d. Reviews the exercise program with the participant including home exercise, 
compliance, and participant's expectations and goals. 
e. Instructs the participant in the safe and effective use of exercise modalities, 
exercise plan, and reporting symptoms. 
3. Program Implementation and Ongoing Support 
a. Implement the program (e.g. exercise treatment, education, counseling, goals). 
b. Strives towards proficiency in the core competencies related to an Exercise 
Specialist including, but not limited to: knowledge and skill in risk factor and 
health status identification; fitness appraisal; exercise prescription; and the 
ability to educate and/or counsel individuals regarding lifestyle modification. 
c. Continually assess participant feedback, clinical signs, and symptoms, exercise 
tolerance, and provide feedback to the participant[ s] about their exercise 
progress and general program participation. 
d. Develop a basic marketing strategy for faculty, staff, students, and community 
members that alerts them to the Wellness opportunities available to them using 
a variety of electronic and print media including a dedicated wellness 
webpage. 
e. Reassess and update the program (e.g. exercise, education, client goals) based 
on the participant[']s progress and feedback. 
f. Maintain the participant's records to document progress and clinical status. 
g. Develop a system to report the number and type of wellness visits and report 
those monthly. 
4. Leadership and Counseling 
a. Educate the participant about performance and progressiOn of aerobic, 
strength, and flexibility exercise programs. 
b. Provide disease management and risk factor reduction education based on the 
participant's medical history, needs and goals. 
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Matter ofS-W-U-
c. Communicates with clients in a respectful way that reflects the Christian faith, 
and communicates effectively with team members about individual client 
findings or concerns and about program improvement ideas. 
d. Creates a positive environment for participant adherence and outcomes by 
incorporating effective motivational skills, communication techniques, and 
behavioral strategies. 
e. Other duties as capable and assigned by the professional staff (Wellness 
Program Supervisor, Counseling and Health Services staff, Vice President for 
Student Life). This includes, but is not limited to, taking blood pressures, 
assessing heart rates, conducting exercise risk assessments, providing 
therapeutic massage. 
f. Collaborate and consult with healthcare professionals to address clinical issues 
and provide referrals to optimize participant outcomes. 
5. Legal and Professional Considerations 
a. Evaluate the exercise environment to minimize risk and optimize safety by 
following routine inspection procedures based on established facility and 
industry standards and guidelines. 
b. Perform regular inspections of emergency equipment and practice emergency 
procedures (e.g., crash cart, advanced cardiac life support procedures; 
activation of emergency medical system). 
c. Assist, as directed, in emergency situations. 
d. Promote awareness and accountability and mtmmtze risk by informing 
participants of safety procedures and self-monitoring of exercise and related 
symptoms. 
e. Comply with the Health Insurance Portability and Accountability Act (HIPAA) 
laws and industry accepted professional, ethical, and business standards in 
order to maintain strictest confidentiality concerning clients' and families' 
medical and personal information, optimize safety, and reduce liability. 
f. Promote a positive image of the program by engaging in healthy lifestyle 
practices. 
g. Attend all staff meetings. If unable to attend, obtains information from 
meeting minutes or another staff member. 
h. Must obtain CEUs to maintain certification and/or licensure. 
1. Select and participate in continuing education programs that enhance 
knowledge and skill on a continuing basis, maximize effectiveness, and 
increase professionalism in the field. 
The Petitioner presents the proffered position as belonging to the Community Health Workers 
occupational group. Also, by virtue of the Labor Condition Application (LCA) that it submitted to 
support the petition, the Petitioner not only presented Community Health Workers as the 
occupational group within which the proffered position should be evaluated, but also attested that the 
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Matter ofS-W-U-
proffered position merited only a Level I prevailing-wage rate, which for the dates and location of 
community health workers specified in the LCA, was $12.34 an hour. 
III. ANALYSIS 
A. Regarding the Director's Reliance on the Occupational Outlook Handbook 
For the reasons discussed below, we are not persuaded by the contention on appeal that the decision 
to deny the petition should be overturned because the Director relied upon information presented in 
the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook). 
USCIS and its predecessor agency (Immigration and Naturalization Service (INS)) have long relied 
upon the Handbook as an authoritative source of information on the wide variety of occupations it 
addresses. 2 
The Handbook in its "OOH FAQs" section accessible at http://www.bls.gov/ooh/about/ooh-faqs.htm 
(last visited Oct. 22, 20 15), states the following regarding the information it provides about 
occupations: 
The Occupational Outlook Handbook (OOH) provides information on what 
workers do; the work environment; education, training, and other qualifications; pay; 
the job outlook; similar occupations; and sources of additional information, for 334 
occupational profiles covering about 84 percent of the jobs in the economy. 
The OOH is broken up into clusters of similar occupations. In order to find an 
occupation, browse the occupation groups of interest on the left-hand side of the 
homepage, or use the A-Z Index if you know the specific occupation. You may 
search for occupations by using the selector drop-down menus on the OOH 
homepage. Select by pay range, entry-level education, on-the-job training, projected 
number of new jobs, or projected growth rate. If you know the specific occupation 
you are interested in, you may enter a job title into the "Search Handbook" box at the 
top. In addition, you may browse by clicking any of the three links titled "highest 
paying," "fastest growing (projected)," "and most new jobs (projected)." 
The F AQs section also indicates that, as with the O*NET, the Handbook "includes occupations that 
are covered in the 2010 Standard Occupational Classification System (SOC), which is used by 
federal statistical agencies to classify workers into occupational categories for the purpose of 
collecting, calculating, or disseminating data"; that "most of [the Handbook's] profiles do give 
2 The Handbook, which is available in printed form from third-party publishers, may also be accessed online at 
http://www.bls.gov/ooh/home.htm/es/ooh/home.htm. Our references are to the 2014-15 Handbook edition available 
online. 
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Matter of S-W- U-
general guidance on the education and training needed to enter occupations"; that the "How to 
Become One" section in most of the Handbook's occupational profiles describes the general 
educational preparation typical of those who enter the occupation; that some of those "How to 
Become One" sections include information on helpful coursework; and that the Handbook is also a 
way to search for occupations by pay range, entry-level education, on-the-job training, projected 
number of new jobs, or projected growth rate. 
As to the Petitioner's assertion that the Handbook is "outmoded," we note that the F AQs section's 
response to the Handbook's authorship states that the Handbook is revised every two years by a staff 
of economists in the Employment Projections program at the Bureau of Labor Statistics. The Bureau 
of Labor Statistics produces the Handbook. 
In the following item from the "Frequently Asked Questions" segment of its Internet site, the Bureau 
of Labor Statistics identifies itself as follows: 
Question: What is the Bureau of Labor Statistics (BLS)? 
Answer: The Bureau of Labor Statistics (BLS) is the principal fact-finding 
agency for the Federal Government in the broad field of labor economics and 
statistics. The BLS is an independent national statistical agency that collects, 
processes, analyzes, and disseminates essential statistical data to the American public, 
the U.S. Congress, other Federal agencies, State and local governments, business, and 
labor. The BLS also serves as a statistical resource to the Department of Labor. 
BLS data must satisfy a number of criteria, including relevance to current social 
and economic issues, timeliness in reflecting today's rapidly changing economic 
conditions, accuracy and consistently high statistical quality, and impartiality in both 
subject matter and presentation. 
Bureau of Labor Statistics, U.S. Department of Labor, Frequently Asked Questions (FAQs), 
http://www.bls.gov/dolfaq/bls_ques26.htm (last visited Oct. 22, 2015). 
While we refer to the Handbook when it provides information about the duties and educational 
requirements of occupations to which proffered positions belong, we will not exclude from our 
consideration information presented from other authoritative sources, such as, for instance, O*NET 
OnLine. 
O*NET OnLine is sponsored by the Department of Labor's Employment & Training Division, and it 
addresses more SOC occupational classifications that than does the Handbook. While we view 
O*NET Online as a reliable source, its information is not as finely tuned as the Handbook's with 
regard to educational requirements for entry into the occupations which it covers. Rather than 
addressing occupational groups individually - as does the Handbook - O*NET OnLine congregates 
Matter of S-W- U-
occupational groups together according to where they fall within the various measures, by which the 
O*NET OnLine assigns Job Zone classifications from One to Five. 
To elucidate, we will now address the "Job Zone" section of the O*NET's Summary Report on 
Community Health Workers (identifiable by the SOC code 21-1094), which is the occupational 
category that the Petitioner has indicated that the proffered position corresponds to. That specific 
section of the O*NET Summary Report assigns Job Zone 4 to the occupation and contains the 
following information, which the O*NET applies uniformly to all occupations within that Job Zone: 
Title 
Education 
Related 
Experience 
Job 
Training 
Job Zone 
Examples 
SVP 
Range 
Job Zone Four: Considerable Preparation Needed 
Most of these occupations require a four-year bachelor's 
degree, but some do not. 
A considerable amount of work-related skill, knowledge, or 
experience is needed for these occupations. For example, an 
accountant must complete four years of college and work for 
several years in accounting to be considered qualified. 
Employees in these occupations usually need several years 
of work-related experience, on-the-job training, and/or 
vocational training. 
Many of these occupations involve coordinating, 
supervising, managing, or training others. Examples include 
accountants, sales managers, database administrators, 
teachers, chemists, art directors, and cost estimators. 
(7.0 to < 8.0) 
Employment & Training Administration, U.S. Dept. of Labor, O*Net OnLine, Summary Report for 
Community Health Workers, at http://www.onetonline.org/linklsummary/21-1094.00 (last visited 
Oct. 22, 2015). 
As seen above, the "Education" section does not focus on the educational requirements of any 
particular occupational group within the Job Zone Four category. Also, this Job Zone only states 
that "most" -but not all - of its included occupations "require a four-year bachelor's degree." In 
addition, the Job Zone designation does not specify any particular majors or academic concentrations 
as required by any of its occupations which would require a bachelor's degree. Thus, Job Zone Four 
designation does not specify which of the included occupational groups would require bachelor's 
degrees, nor for occupations where bachelor's degrees may be required, does it state that the degrees 
must be in a specific specialty directly related to the occupation. 
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Matter ofS-W-U-
This brings us to the import of the SVP designation. O*NET OnLine provides general information 
regarding the tasks and work activities associated with a particular occupation, as well as broad 
descriptions of education, training, and experience required to perform the duties of that occupation. 
An SVP rating is meant to indicate only the total number of years of vocational preparation required 
for a particular occupation. It does not describe how those years are to be divided among training, 
formal education, and experience and it does not specify the particular type of degree, if any, that a 
particular position would require. O*NET OnLine Help provides the following discussion: 
Specific Vocational Preparation is a component of Worker Characteristics 
information found in the Dictionary of Occupational Titles (U.S. Department of 
Labor, 1991). 
Specific Vocational Preparation, as defined in Appendix C of the Dictionary of 
Occupational Titles, is the amount of lapsed time required by a typical worker to 
learn the techniques, acquire the information, and develop the facility needed for 
average performance in a specific job-worker situation. 
This training may be acquired in a school, work, military, institutional, or 
vocational environment. It does not include the orientation time required of a fully 
qualified worker to become accustomed to the special conditions of any new job. 
Specific vocational training includes: vocational education, apprenticeship training, 
in-plant training, on-the-job training, and essential experience in other jobs. 
Specific vocational training includes training given in any of the following 
circumstances: 
1. Vocational education (high school, commercial or shop training, technical 
school, art school, and that part of college training which is organized around 
a specific vocational objective) 
2. Apprenticeship training (for apprenticeablejobs only) 
3. In-plant training (organized classroom study provided by an employer) 
4. On-the-job training (serving as learner or trainee on the job under the 
instruction of a qualified worker) 
5. Essential experience in other jobs (serving in less responsible jobs, which lead 
to the higher-grade job, or serving in other jobs which qualify). 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level Time 
1. Short demonstration only 
2. Anything beyond short demonstration up to and including 1 month 
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Matter ofS-W-U-
3. Over 1 month up to and including 3 months 
4. Over 3 months up to and including 6 months 
5. Over 6 months up to and including 1 year 
6. Over 1 year up to and including 2 years 
7. Over 2 years up to and including 4 years 
8. Over 4 years up to and including 10 years 
9. Over 1 0 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
U.S. Department of Labor. (1991). Dictionary ofOccupational Titles (Rev. 4th ed.). 
Washington, DC: U.S. Government Printing Office. 
See Employment & Training Administration, U.S. Dep't of Labor, O*NET OnLine, O*NET OnLine 
Help, at http:/ /www.onetonline.org/help/online/svp. 
Thus, the SVP assigned the proffered position's occupational group does not indicate that at least a 
four-year bachelor's degree is required for entry, or more importantly, that such a degree must be in a 
specific specialty closely related to the occupation to which this rating is assigned. Rather, by 
application of the guidelines quoted above, we see that the "7.0 to < 8.0" SVP designation only 
conveys that "[ o ]ver 2 years and up to and including four years" would be the amount of lapsed time 
required by a typical worker in the occupational group to learn the techniques, acquire the 
information, and develop the facility needed for average performance in a specific job-worker 
situation (through vocational education, apprenticeship training, in-plant training, on-the-job training 
as a learner or trainee, or essential experience in other jobs and acquired in acquired in a school, 
work, military, institutional, or vocational environment). 
For the reasons discussed above, and contrary to the Petitioner's interpretation, the O*NET OnLine 
information carries little weight towards establishing the proffered position one for which the 
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry. 
As evident in the following excerpt, the Handbook's treatment of community health workers focuses 
on specific particular occupations and upon the particular educational requirements that they require 
for entry. The Handbook's "Health Educators and Community Health Workers" chapter includes the 
following occupation-specific information (not included in the O*NET) about educational 
requirements for entry into the Community Health Workers occupation: 
Community health workers typically have a high school diploma, although some 
jobs may require postsecondary education. Education programs may lead to a 1-year 
certificate or a 2-year associate's degree and cover topics such as wellness, ethics, 
and cultural awareness, among others. Community health workers typically have a 
shared language or life experience and an understanding of the community that they 
serve. 
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Matter of S-W- U-
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Community Health Workers, accessible at http://www.bls.gov/ooh/community-and-social­
service/health-educators.htm#tab-4 (last visited Oct. 22, 20 15). 
Thus, rather than conflicting with the O*NET, the Handbook fills an information gap left by the 
O*NET. 
Additionally, the Petitioner does not provide any statements from the Department of Labor 
endorsing his characterization of the Handbook as "outmoded" and "potentially misleading." Nor 
does the Petitioner address the Department of Labor's own endorsement of the Handbook's value. 
Also, the Petitioner's description of the Handbook as "outmoded" conflicts with the fact that the 
Department of Labor continues to publish the Handbook every two years. Nor does the record of 
proceeding quote any Department of Labor document characterizing the O*NET as replacing, 
superseding, or having superior value or weight than, the Handbook. 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, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
B. Import of the LCA 
As we noted above, as the LCA supporting the petition, the Petitioner submitted one that had been 
certified for use with a petition for a position that (1) would be both within the Community Health 
Workers occupational group and (2) would merit assignment of no more than a Level I (entry-level) 
prevailing-wage rate, the lowest paying of the four assignable levels.3 
3 DOL has stated clearly that its LCA certification process is cursory, that it does not involve substantive review, and that 
it makes the Petitioner responsible for the accuracy of the information entered in the LCA. With regard to LCA 
certification, the regulation at 20 C.F.R. § 655.715 states the following: 
Certification means the determination by a certifying officer that a labor condition application is not 
incomplete and does not contain obvious inaccuracies. 
Likewise, the regulation at 20 C. F. R. § 655. 735(b) states, in pertinent part, that "[i]t is the employer's responsibility to 
ensure that ETA ((the DOL's Employment and Training Administration)] receives a complete and accurate LCA." 
The regulation at 8 C.F.R. § 214.2(h)(4)(i)(B)(2) also makes clear that certification of an LCA does not constitute a 
determination that a position qualifies for classification as a specialty occupation: 
Certification by the Department of Labor of a labor condition application in an occupational 
classification does not constitute a determination by that agency that the occupation in question is a 
specialty occupation. The director shall determine if the application involves a specialty occupation as 
defined in section 214(i)(l) of the Act. The director shall also determine whether the particular alien 
for whom H-18 classification is sought qualifies to perform services in the specialty occupation as 
prescribed in section 214( i)(2) of the Act. 
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Matter of S-W- U-
The Prevailing Wage Determination Policy Guidance issued by DOL states the following with 
regard to Level I wage rates: 
Level I (entry) wage rates are assigned 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 familiarization 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. 
See DOL, Employment and Training Administration's Prevailing 
Guidance, Nonagricultural Immigration Programs 
http:/ /www.foreignlaborcert.doleta.gov/pdf/Policy _ Nonag_Progs.pdf. 
Wage Determination Policy 
(Rev. Nov. 2009), 
· The proposed duties' level of complexity, uniqueness, and specialization, as well as the level of 
independent judgment and occupational understanding required to perform them, are questionable, as 
the Petitioner submitted an LCA certified for a Level I, entry-level position. By virtue of the particular 
LCA that it submits with a petition, a petitioner attests that both the wage-level and occupational group 
to which the wage-level pertains accurately reflect the position that is the subject of the petition. 
Accordingly, by virtue of the LCA submitted in this case, the Petitioner attested that the proffered 
position is actually a low-level, entry position relative to others within the specified occupation, 
Community Health Workers. 
In accordance with the relevant DOL explanatory information on wage levels, the submission of an 
LCA certified for use with a Level I prevailing-wage position indicates that the Petitioner assessed 
the proffered position as one for which the beneficiary would only be required to possess a basic 
understanding of the occupation; that she would be expected to perform routine tasks requiring 
limited, if any, exercise of judgment; that she would be closely supervised and her work closely 
monitored and reviewed for accuracy; and that she would receive specific instructions on required 
tasks and expected results.4 
4 The issue here is that the petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. 
Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position from 
classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level position 
would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, 
however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that 
higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty or its 
equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a determination 
of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
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(b)(6)
Matter of S-W- U-
C. Application ofthe Criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) 
We will now discuss why application of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to the evidence 
of record would not support approval ofthis petition. 
A baccalaureate or higher degree in a specific specialty , or its equivalent, is 
normally the minimum requirement for entry into the particular position 
The issue presented by the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) is whether the evidence in 
the record of proceeding has established that the particular position that is the subject of the petition 
is one for which the minimum requirement for entry is normally a baccalaureate or higher degree in 
a specific specialty, or its equivalent. 
We refer the Petitioner to, and here incorporate, our earlier discussion addressing the Handbook and 
O*NET OnLine information regarding the occupational group to which the Petitioner identified the 
proffered position, i.e., Community Health Workers. The Handbook indicates that community health 
workers do not constitute an occupational group for which entry normally requires at least a bachelor's 
degree in a specific specialty, or its equivalent. This is clearly conveyed by the Handbook's stating: 
!d. 
Community health workers typically have a high school diploma, although some 
jobs may require postsecondary education. Education programs may lead to a 1-year 
certificate or a 2-year associate 's degree and cover topics such as wellness, ethics, 
and cultural awareness, among others. Community health workers typically have a 
shared language or life experience and an understanding of the community that they 
serve. 
Also, as we have discussed, the O*NET OnLine information cited by the Petitioner does not conflict 
with the Handbook's information, and in fact, the Handbook provides details not available at O*NET 
OnLine. 
The Petitioner's RFE-reply includes a letter from Ed.D., MAACVPR, an associate 
professor of exercise science at the university that filed the petition. signs his submission 
as the supervisor of the wellness program for which the Beneficiary would perform her services as 
an H-1 B nonimmigrant if the petition were approved. According to the Petitioner has 
patterned its wellness program upon the . 
initiative. The record of proceeding does not include documentary evidence of this 
initiative. However, states that, as supervisor of the wellness program, he "built the job 
description on the knowledge, skills, and abilities (KSAs) put forth by the " He adds: 
These KSAs require that a leader in the Wellness Program would be classified as 
an Exercise Specialist. An Exercise Specialist must have the KSAs to risk-stratify the 
13 
(b)(6)
Matter ofS-W-U-
population served, obtain medical clearance, when indicated, develop individualized 
exercise and lifestyle recommendations, supervise exercise sessions, and provide a 
safe and effective exercise and lifestyle therapies. According to the , a person 
with this level of specialized training would require at least a bachelor's degree. 
While attests that he based the proffered position's job description on the KSAs of the 
initiative, he does not supplement the letter with evidence to support the 
implied proposition that performance of a job modelled on the m1tlattve 
would require the theoretical and practical application of at least a bachelor's degree level of a body 
of highly specialized knowledge in exercise science or a closely related specialty, as would be 
required in this petition's context to meet the "specialty occupation" definitions at section 214(i)(l) 
ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii). 
We first observe that the record of proceeding does not include evidence from describing the 
' initiative, its KSAs, what particular certification may pertain to that 
initiative, and the requirements for an individual to achieve such certification. Further, we cannot 
discern from the evidence of record that certification involves consideration of the 
performance requirements of any particular position : rather from what little appears in the record 
about types of certification, it appears that cettification is purely a function of what a 
person demonstrates about his or her education and experience, by documentation and 
examination. In light of this record's absence of evidence to the contrary, it appears that 
certification requirements neither address nor are dependent upon a candidate's job. By the same 
token, the evidence of record does not establish that . is an occupation-accrediting or job­
certifying agency or that it is recognized as such by any governmental or educational authority. 
In addition, we also find that the record of proceeding does not contain any documentary evidence 
supporting statement that "[a]ccording to the a person with this level of 
specialized training would require at least a bachelor's degree." 
In short, the evidence of record does not establish that either accreditation or the KSAs of the 
initiative have significant probative value for our determination on the 
specialty occupation issue before us. 
The RFE-response documents also include a letter from writing as 
Coordinator Cardiac Rehabilitation, , at In 
part, the letter states that a bachelor's degree in exercise science (which, we note, the Beneficiary 
holds) is a prerequisite for the certifications offered by also states that, in the 
month in which she wrote the letter, her wellness center employed an' 
work in industry," to coach obese employees at hospital, and to go into a factory 
setting to do health assessments and exercise training. According to the letter, the new employee not 
only holds a bachelor's degree in exercise science, but also holds certification - which the 
Beneficiary does not. 
14 
(b)(6)
Matter ofS-W-U-
While letter indicates that her hospital hired the person with the exercise science degree 
and certification, the letter also indicates that the hospital had also considered for hire persons 
without those qualifications (identified as "RNs, dieticians, and other exercise professionals"). 
Therefore, the letter is not evidence that the proffered position could only be performed by a person 
with at least a bachelor's degree in exercise science, or its equivalent. Further, the hiring action that 
references is not equivalent to the one presented by the Petitioner: the Beneficiary does 
not hold the certification which identified as a factor in her hospital's hiring 
decision. 
As the Petitioner presents no information from any authoritative source to refute or rebut the 
Handbook's information, the Petitioner does not present a factual basis for us to conclude that the 
proffered position's inclusion within the Community Health Workers occupational classification is 
sufficient to establish that it is, in the words of this criterion, a "particular position" for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry." 
We also here incorporate our earlier discussion about the import of the Petitioner's submission of an 
LCA that had been certified for use with a job opportunity which only merited a Level I prevailing­
wage rate. The proposed duties' level of complexity, uniqueness, and specialization, as well as the level 
of independent judgment and occupational understanding required to perform them, are questionable, in 
light ofthe LCA certified for a Level I, entry-level position. 
Again, by submitting an LCA certified for that lowest-assignable prevailing-wage level, the Petitioner 
signified that it assessed the position as being a low-level, entry position relative to others within the 
same occupation. As earlier noted, jn 
accordance with the relevant DOL explanatory information on 
wage levels, the Level I wage-rate is appropriate only for positions where the beneficiary would be 
required to possess a basic understanding of the occupation; would be expected to perform routine 
tasks requiring limited, if any, exercise of judgment; would be closely supervised and have her work 
closely monitored and reviewed for accuracy; and would receive specific instructions on required 
tasks and expected results. We find that so identifying the proffered position as entry-level within an 
occupation (Health Care Workers) for which a high-school diploma, a one-year certificate, or a two­
year associates degree can qualify a person for entry is materially inconsistent with the Petitioner's 
claim that it has satisfied the criterion at 8 C.F .R. § 214.2(h)( 4)(iii)(A)(l). 
For the reasons discussed above, we conclude that the record of proceeding does not establish that 
the particular position that is the subject of this petition on 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.F.R. § 214.2(h)(4)(iii)(A)(l) . 
The requirement qf a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
15 
(b)(6)
Matter ofS-W-U-
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 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, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quotingHird!BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.1989)). 
As already discussed , the Petitioner has not established that its proffered position is one for which 
the Handbook (or other objective, authoritative source), reports a standard , industry-wide 
requirement of at least a bachelor's degree in a specific specialty , or its equivalent. Further, there is 
no evidence of a professional association for the industry making a degree a minimum entry 
requirement , and the record does not contain letters or affidavits from firms or individuals in the 
industry attesting that such firms "routinely employ and recruit only degreed individuals." 
The Petitioner, however , provided copies of five job-vacancy announcements. By employer name, 
job title, and educational requirements specified for the position, they are: 
• posting for a "Regional Health Fitness Specialist ," specifying 
requirements of a bachelor 's degree from a 4-year college or university in "Exercise , 
Kinesiology , or a related field." 
• ; posting for a "Fitness Specialist " which states hiring 
requirements as "a bachelor's degree from a 4-year college or university in a health­
related, exercise science, kinesiology, or physiology major," and "a current NCCA 
accredited certification (i.e., ACSM RCEP, ACSM HFS, NSCA CPT, NSCA CSCS, 
NASM CPT, ACE, etc."); 
• posting for a "Fitness Specialist - WellAware Center, PRN," 
which specifies the minimum educational requirement of a high school diploma or GED 
(general education diploma) ; 
• posting for a "Fitness Specialist" for Duke employees , 
which specifies as the education/experience /certification requirements "BA/BS in exercise 
related field [(later described as "exercise science, physical education, or related field)], 
MS preferred "; "Minimum of one year of experience in employee health promotion 
setting"; current CPR and First Aid certifications"; and "Professional certification (ACE, 
AFAA, ACSM)) ", with allowance for "an equivalent combination of relevant education 
and/or experience ." 
• posting for an "Exercise Specialist /ATC-Flexible " to work as an Athletic 
Trainer Certified Physical Therap y Aide under the direction and supervision of a licensed 
Physical Therapist, who must hold at least a bachelor's degree "in exercise science, or 
16 
(b)(6)
Matter ofS-W-U-
related field such as recreation, parks management , travel and tourism"; and "Athletic 
Trainer Certified (ATC) by the National Athletic Training Association Board of 
Certification (NATABOC)"; and a current Oregon Athletic Trainer License. 
specifying a high school or GED certificate as acceptable (though not 
preferred) for its advertised 
position, does not favor the Petitioner's contention. 
The job-posting does not appear to be for a position parallel to the one that is the subject of 
the petition, as the posting is for a person certified as an athletic trainer who would help provide 
outpatient rehabilitation, as part of a patient-care team and under the direction and supervision of a 
licensed physical therapist. 
The "Job Description" of the advertisement deals only in 
generalities about (1) the job's central purpose ("to provide professional fitness service to members, 
clients, and guests of the center to appropriately meet the health and fitness needs of each 
individual " and (2) the need to "[m]aintain a positive and professional demeanor during [all] 
interactions and work related relationships." This is an insufficient factual basis for considering the 
advertised position as parallel to the proffered position. 
The minimum requirements specified in the advertisement - "High School 
Diploma or OED" -bear against the against the Petitioner's claim. 
Also, the fact that and all 
specify professional certifications in addition to the specified degrees, which shows that those 
employers require a greater demonstration of knowledge of the associated occupation than the 
Petitioner, also suggests that their positions are not parallel to the one that is the subject of this 
petition. 
Thus, just a few of the five job postings are relevant for consideration as related to positions parallel 
to the one for which the petition was filed, and they suggest, at best, that a bachelor's degree in a 
specific specialty is sometimes required for the type of position that is the subject of this petition ·. 5 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
5 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 does not demonstrate 
what inferences , if any, can be drawn from these advertisements with regard to determining the common educational 
requirements 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 . 
1"7 
Matter ofS-W-U-
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed. 
As the evidence has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to 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, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
spec(fic specialty, or its equivalent 
A petitioner satisfies the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) by showing 
that its particular position is so complex or unique that it can be performed only by a person with at 
least a bachelor's degree in a specific specialty, or its equivalent. 
We see that the Petitioner has ascribed a sizeable number of duties and responsibilities to the 
proffered position. However, the Petitioner has not supplemented those duty descriptions with any 
objective evidence by which we can reasonably conclude that the proffered position is so complex or 
so unique that it can only be performed by a person with at least a bachelor's degree in a specific 
specialty. For instance, the Petitioner did not submit evidence showing how completion of a 
particular curriculum culminating in a bachelor's or higher degree in a specific specialty would be 
necessary to handle whatever relative level of complexity or uniqueness the petitioner may attribute 
to the position. 
Thus, the Petitioner has not met the burden of proof for satisfying the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
spec(fic specialty, or its equivalent, for the position 
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. In the 
instant case, the record does not establish a prior history of recruiting and hiring for the proffered 
position only persons with at least a bachelor's degree in a specific specialty, or its equivalent. In 
fact, the record reflects that the Petitioner is here engaged in a first-time hiring for the position. 
Thus, we find that the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment ~~a 
baccalaureate or higher degree in a specific specialty, or its equivalent 
18 
Matter of S- W- U-
The criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)( A)( 4) is satisfied if the evidence of record establishes that 
the nature of the proffered position's specific duties is so specialized and complex as to require the 
application of knowledge usually associated with the attainment of at least a bachelor's degree in a 
specific specialty or its equivalent. 
While ascribing many duties to the proffered position, the Petitioner has not provided credible, 
probative evidence which objectively confirms that the nature of the specific duties is so specialized 
and complex that their performance would require application of knowledge usually associated with 
the attainment of at least a bachelor's degree in a specific specialty or its equivalent; and there is no 
basis for us to take administrative notice that the duties as described by the Petitioner satisfy the 
requirements of this criterion. Also, in light of our earlier discussions about its import, the 
Petitioner's use of a Level I prevailing-wage designation appears inconsistent with this criterion. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
As the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. The appeal will be dismissed.6 
IV. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S. C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-W-U-, ID# 14213 (AAO Oct. 27, 2015) 
6 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval of the H-1 8 petition. 
19