dismissed H-1B Case: Fashion Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF AP-E-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 12, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an embroidery and design business, seeks to temporarily employ the Beneficiary as 
a fashion designer under the H-1B nonimmigrant classification. See section 101(a)(15)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
Vermont Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 1 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
For an H-lB petition to be granted, the Petitioner must provide sufficient evidence to establish that 
it will employ the Beneficiary in a specialty occupation position.2 To meet its burden of proof in 
this regard, the Petitioner must establish that the employment it is offering to the Beneficiary 
meets the applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 
We conduct appellate review on a de novo basis. Matter of Simeio Solutions, LLC, 26 J&N Dec. 542 (AAO 20 15); 
see also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it 
would have in making the initial decision except as it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 
997, 1 002 n. 9 (2d Cir. 1989). 
2 The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's claim is 
"probably true," where the determination of "truth" is made based on the factual circumstances of each individual 
case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 
(Comm'r 1989)). 
Matter of AP-E-
(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: 
(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 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 of language 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 of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 
8 C.P.R. § 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily 
sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise 
interpret this section as stating the necessary and sufficient conditions for meeting the definition of 
2 
Matter of AP-E-
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 387. 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. Chertojj; 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, US CIS regularly approves H -1 B petitions for qualified foreign 
nationals 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-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the foreign national, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is 
not the title of the position nor an employer's self-imposed standards, but whether the position 
actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
B. The Proffered Position 
In its support letter, the Petitioner provided the following information regarding the duties of the 
proffered position: 
Design clothing and accessories. 
Create original designs and adapt current fashion trends to current designs. 
Engage in continuous team building efforts. 
The Petitioner also stated that the minimum educational requirement for the position IS a 
bachelor's degree in fashion design. 
3 
Matter of AP-E-
In its response to the request for evidence (RFE), the Petitioner expanded the duties of the 
proffered position as follows: 
Duty Time spent on average each day 
Study fashion trends and anticipate designs 20% of each day 
that will appeal to consumers. 
Examine sample garments on and off models 20% of each day 
and then modify their designs to achieve 
desired effects. 
Sketch rough and detailed drawings of 20% of each day 
apparel and write specifications such as color 
schemes, construction, material types and 
accessory requirements. 
Attend trade shows to obtain fabric samples. 10% of each day, on average 
Oversee the production of the designed 20% of each day 
clothing. 
Market designs to clothing retailers and to 1 0% of each day 
consumers. 
The Labor Condition Application (LCA) submitted by the Petitioner in support of the petition was 
certified for use with a job prospect within the "Fashion Designers" occupational classification, 
SOC (O*NET/OES) Code 27-1022, a Level I (entry-level) prevailing wage rate, the lowest ofthe 
four assignable wage-levels. 
C. Analysis 
For H -1 B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
to substantiate that it has H -1 B caliber work for the Beneficiary for the period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work 
to require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, the Petitioner indicated that the Beneficiary will be employed as a fashion designer. 
However, upon review of the record of proceeding, we find that the Petitioner did not provide 
4 
Matter ofAP-E-
sufficient, credible evidence to establish employment for the Beneficiary for the validity of the 
requested H -1 B employment period. Specifically, the Petitioner did not submit a job description 
to adequately convey the substantive work to be performed by the Beneficiary. 
Considering the totality of all of the Petitioner's duty descriptions, we find that the evidence of record 
does not establish the depth, complexity, or level of specialization, or substantive aspects of the 
matters upon which the Petitioner claims that the Beneficiary will engage. Rather, the duties of the 
proffered position, and the position itself, are described in relatively generalized and abstract terms 
that do not relate substantial details about either the position or its constituent duties. Furthermore, 
some descriptions of the proffered position that have been submitted in the RFE response letter 
rely on the generic duties of a fashion designer similar to those that appear in the Department of 
Labor's Occupational Outlook Handbook (the Handbook), such as that the Beneficiary will 
"[ s ]tudy fashion trends and anticipate designs that will appeal to consumers," "[ m ]arket designs to 
clothing retailers and to consumers," and "[a]ttend trade shows to obtain fabric samples." 3 
Providing generic job duties for a proffered position similar to ones listed in the Handbook is 
generally not sufficient for establishing H -1 B eligibility. That is, while this type of description 
may be appropriate when defining the range of duties that may be performed within an 
occupational category, it generally cannot be relied upon by a petitioner when discussing the 
duties attached to specific employment for H-1B approval as this type of generic description does 
not adequately convey the substantive work that the Beneficiary will perform within the 
Petitioner's business operations. In establishing a position as qualifying as a specialty occupation, 
a petitioner must describe the specific duties and responsibilities to be performed by a beneficiary 
in the context of the Petitioner's business operations, demonstrate a legitimate need for an 
employee exists, and substantiate that it has H -1 B caliber work for the Beneficiary for the period 
of employment requested in the petition. 
Thus, as so generally described, we find that the descriptions do not illuminate the substantive 
application of knowledge involved or any particular educational attainment associated with such 
application. The duties as described give very little insight to actual tasks that the Beneficiary would 
perform on a day-to-day basis. Furthermore, we find that the Petitioner has not supplemented the job 
and duty descriptions with documentary evidence establishing the substantive nature of the work that 
the Beneficiary would perform, whatever practical and theoretical applications of highly specialized 
knowledge in a specific specialty would be required to perform such substantive work, and whatever 
correlation may exist between such work and associated performance-required knowledge and 
attainment of a particular level of education, or educational equivalency, in a specific specialty. 
In the instant case, the Petitioner has not described the proffered position with sufficient detail to 
determine that the minimum requirements are a bachelor's degree in a specialized field of study. 
3 See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Fashion 
Designers," available at http://www.bls.gov/ooh/arts-and-design/fashion-designers.htm#tab-2 (last visited Nov. 9, 
2015). 
5 
·--------------··---. 
Matter of AP-E-
It is incumbent on the Petitioner to provide sufficient evidence to establish that the particular 
position that it proffers would necessitate services at a level requiring both the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of at least a 
bachelor's degree in a specific specialty, or its equivalent. When "any person makes an 
application for a visa or any other document required for entry, or makes an application for 
admission,[ ... ] the burden of proof shall be upon such person to establish that he is eligible" for 
such benefit. Section 291 of the Act; see also Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg'l Comm'r 1972). 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the Beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
The record therefore does not establish the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines 
(1) the normal minimum educational requirement for the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate 
for review for a common degree requirement, under the first alternate prong of criterion 2; (3) the 
level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. 
Furthermore, the LCA submitted by the Petitioner in support of the instant petition indicates a 
wage level at a Level I (entry) wage, which is the lowest offour assignable wage levels.4 Without 
further evidence, the record does not demonstrate that the proffered position is complex or unique 
as such a position falling under this occupational category would likely be classified at a higher­
level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. 5 For example, a Level IV (fully competent) position is 
4 The wage-level of the proffered position indicates that (relative to other positions falling under this occupational 
category) the Beneficiary is only required to have a basic understanding of the occupation. 
5 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 
6 
Matter of AP-E-
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems." 6 
On appeal, the Petitioner references Young China Daily v Chappell, 742 F. Supp. 552 (N.D. Cal. 
1989), asserting that the Director erroneously focused on the size of the Petitioner in reviewing the 
petition and reaching her decision. While we concur that USCIS should not limit its review to the 
size of a petitioner and must consider the actual responsibilities of the proffered position, it also 
notes that it is reasonable to assume that the size of an employer's business has or could have an 
impact on the claimed duties of a particular position. See EG Enterprises, Inc. d/b/a/ Mexican 
Wholesale Grocery v. Department of Homeland Security, 467 F. Supp. 2d 728 (E.D. Mich. 
2006). Thus, the size of a petitioner may be considered as a component of the nature of the 
Petitioner's business, as the size impacts upon the actual duties of a particular position. In this 
matter, the record does not establish the substantive nature of the work to be performed by the 
Beneficiary in sufficient detail. 
Absent any independent documentary evidence to support a finding that the duties to be performed 
by the Beneficiary in relation to the Petitioner's claimed operations are sufficiently complex to 
require the services of a degreed fashion designer, or that a degree requirement is common to the 
industry, the Petitioner's reliance on Young China Daily is not persuasive. Regardless, in contrast 
to the broad precedential authority of the case law of a United States circuit court, we are not 
bound to follow the published decision of a United States district court in matters arising within 
the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning 
underlying a district judge's decision will be given due consideration when it is properly before 
us, the analysis does not have to be followed as a matter of law. !d. at 719. 
The Petitioner further refers to unpublished decisions in which we determined that the positions 
proffered in those matters qualified as a specialty occupation. The Petitioner has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished 
decisions. While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all 
USCIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. 
For the. reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed. 7 
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)( 1) of the Act. 
6 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf 
7 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 B petition. 
7 
Matter of AP-E-
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of AP-E-, ID# 14412 (AAO Nov. 12, 2015)