dismissed H-1B Case: Fashion Design

identifying dab deleled to 
U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 196 54000 Office: CALIFORNIA SERVICE CENTER Date: OCT 1 g 2005 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. !j 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 196 54000 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The Administrative 
Appeals Office (AAO) summarily dismissed a subsequent appeal on July 21, 2004. On September 6, 2005, 
the AAO reopened this proceeding on its own motion pursuant to 8 C.F.R. 103.5(a)(5)(ii) for purposes of 
entering a new decision. The appeal will be dismissed. The petition will be denied. 
The petitioner is a lingerie manufacturing company that seeks to employ the beneficiary as a fashion designer. 
The petitioner endeavors to classify the beneficiary as a nonirnrnigrant 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 beneficiary was not qualified to perform the duties of a specialty 
occupation. The AAO previously dismissed the appeal erroneously, as it had not received the brief. 
Subsequent to the AAO's summary dismissal, the AAO received the brief, along with proof that it was timely 
filed. The AAO has reopened the proceeding in order to adjudicate the appeal on the merits. The petitioner 
and its counsel were notified that they had 30 days to supplement the record. Neither the petitioner nor 
counsel replied to the request. Therefore, the record is complete. 
On appeal, counsel states that the director improperly discounted the beneficiary's seven years of experience 
as a trend predictor. Counsel states that the beneficiary has an associate's degree in fashion design 
production, and that this education, combined with his work experience, is equivalent to a bachelor's degree. 
Counsel also states that the beneficiary's duties were progressively responsible, and that she was providing a 
letter from the beneficiary's employer to establish this. Counsel also states that she was providing copies of 
the beneficiary's bank statements to establish that he was paid for his employment. Neither exhibit is in the 
record, and they were not provided in response to the AAO's September 6,2005 request. 
The director determined that the beneficiary is not qualified to perform the duties of a specialty occupation. 
Section 214(i)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1184(i)(2), states that an alien 
applying for classification as an H-1B nonimmigrant worker must possess full state licensure to practice in the 
occupation, if such licensure is required to practice in the occupation, and completion of the degree in the 
specialty that the occupation requires. If the alien does not possess the required degree, the petitioner must 
demonstrate that the alien has experience in the specialty equivalent to the completion of such degree, and 
recognition of expertise in the specialty through progressively responsible positions relating to the specialty. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an alien 
must meet one of the following criteria: 
(I) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
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(3) Hold an unrestricted state license, registration or certification which authorizes him 
or her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
The petitioner is seeking the beneficiary's services as a fashion designer. The petitioner indicated in its June 
17, 2003 letter that it wished to hire the beneficiary because he possessed an associate's degree and work 
experience in the design field. The petitioner stated that it does not require a baccalaureate degree, as long as 
the candidate has sufficient experience. 
The director found that the beneficiary was not qualified for the proffered position because the beneficiary's 
education, experience, and training were not equivalent to a baccalaureate degree in a specialty required by 
the occupation. On appeal, counsel states that the beneficiary is qualified for the position because he was 
employed by- Ltd. for almost eight years. Counsel states that the director seems to have 
disregarded the letter from the beneficiary's previous employer, as there was no corroborating evidence that it 
was the beneficiary's employer. The beneficiary worked for his employer as a part-time assistant to the 
manager, and then he was sent to the United States to work as the company's trend predictor while he was in 
school. Counsel states that the company paid for the beneficiary's education and living expenses. Counsel 
asserts that the April 3, 2003 letter from the beneficiary's previous employer established that the beneficiary 
worked in progressively responsible positions. 
Upon review of the record, the petitioner has failed to establish that the beneficiary is qualified to perform an 
occupation that requires a baccalaureate degree. The beneficiary does not hold a baccalaureate degree from 
an accredited U.S. college or university in any field of study, or a foreign degree determined to be equivalent 
to a baccalaureate degree from a U.S. college or university in any field of study. Therefore, the petitioner 
must demonstrate that the beneficiary meets the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(C)(4). 
Pursuant to 8 C.F.R. 3 214.2(h)(4)(iii)(D), equating the beneficiary's credentials to a United States 
baccalaureate or higher degree shall be determined by one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit for training 
andlor experience in the specialty at an accredited college or university which has a program 
for granting such credit based on an individual's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special credit programs, 
such as the College Level Examination Program (CLEP), or Program on Noncollegiate 
Sponsored Instruction (PONSI); 
WAC 03 196 54000 
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(3) An evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional association 
or society for the specialty that is known to grant certification or registration to persons in the 
occupational specialty who have achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training, 
and/or work experience in areas related to the specialty and that the alien has achieved 
recognition of expertise in the specialty occupation as a result of such training and 
experience. 
When Citizenship and Immigration Services (CIS) determines an alien's qualifications pursuant to 8 C.F.R. 
!j 214.2(h)(4)(iii)(D)(5), three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks. It must be clearly demonstrated that the alien's training 
and/or work experience included the theoretical and practical application of specialized knowledge required 
by the specialty occupation; that the alien's experience was gained while working with peers, supervisors, or 
subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has 
recognition of expertise in the specialty evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized authorities 
in the same specialty occupation1; 
(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade journals, 
books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
The AAO turns to the beneficiary's prior work experience, and whether it included the theoretical and 
practical application of specialized knowledge required by the specialty. As previously noted, the record does 
1 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) 
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of 
any research material used. 8 C.F.R. 214.2(h)(4)(ii). 
WAC 03 196 54000 
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not contain the documents counsel states establish that the beneficiary's duties with his previous employer 
were progressively responsible, and that the previous employer paid the beneficiary during the time stated. 
As described in the April 3, 2003 letter from the beneficiary's previous employer, the beneficiary's duties did 
not appear to involve the theoretical and practical application of fashion design. The employer states that the 
beneficiary's duties included: reporting the most updated fashion trends in the United States on either a daily 
or weekly basis; reporting sketches or photos of new garment construction techniques; and "resource[ing]" the 
U.S. markets for a future expansion of the employer's company to the U.S. market. There is no specificity to 
the beneficiary's daily activities or his level of responsibility. Thus, the AAO cannot conclude that the 
beneficiary's past work experience included the theoretical and practical application of a body of highly 
specialized knowledge, which in this case is fashion design. Furthermore, the employer does not indicate that 
the beneficiary's work experience was gained while working with peers, supervisors, or subordinates who 
have a degree or its equivalent in the specialty occupation. Finally, there is insufficient evidence that the 
beneficiary has recognition of expertise. 
In counsel's letter following the AAO's summary dismissal for not filing a brief, counsel states that it sent its 
brief to the AAO within the 30-day period. The AAO notes that the brief was sent to the California Service 
Center, rather than the AAO. Counsel checked the box on the Form I-290B, Notice of Appeal to the 
Administrative Appeals Unit (AAU), which states, "I am sending a brief andlor evidence to the AAU within 
30 days." (Emphasis in the original). The regulation states: 
Every application, petition, appeal, motion, request or other document submitted on the form 
prescribe by this chapter shall be executed and filed in accordance with the instructions on the 
form, such instruction (including where an application or petition should be filed) being 
herby incorporated into the particular section of regulations in this chapter required its 
submission. 8 C.F.R. 5 103.2(a)(l). 
The petitioner should have mailed the brief directly to the AAO in accordance with the regulation. 
Beyond the decision of the director, the AAO finds that the proffered position is not a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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; 
WAC 03 196 54000 
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(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. 
CIS interprets the term "degree" in the criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a fashion designer. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's June 17,2003 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: designing and sketching sample garments via the customer's request; producing and 
digitizing sample patterns and pre-production patterns; making and providing production marker via request; 
partially supporting the art department; and contacting overseas fabric suppliers. The petitioner indicated that 
a qualified candidate for the job would not need to possess a bachelor's degree if he or she has sufficient 
experience. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 214.2(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 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 firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D.Minn. 1999)(quoting HirdIBlaker Corp. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
The Handbook states, "In fashion design, employers seek individuals with a 2- or 4-year degree who are 
knowledgeable in the areas of textiles, fabrics, and ornamentation, and about trends in the fashion world. . . . 
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Graduates of 2-year programs normally qualify as assistants to designers." While some 2-year graduates may 
start as assistants to designers, the industry standard is clearly that both 2- and 4-year degree holders are typically 
hired in the industry. 
No evidence in the Handbook indicates that a baccalaureate or higher degree, or its equivalent, is required for 
entry into the occupation of fashion designer. 
The petitioner submitted no evidence regarding parallel positions in the petitioner's industry. In response to 
the director's request for evidence, counsel submitted a letter from the director of human resources from 
another designer, which discussed the differences between 2- and 4-year degree programs in fashion design. 
She concludes that the most important element of a good designer is his or her eye for fashion, and that this 
can be developed through either a 2- or 4-year degree program. The author also states that a new graduate 
with either an associate's or a bachelor's degree would rarely be hired into a full fashion design position, and 
that experience is necessary to be hired into such a position. The petitioner also submitted a letter from the 
Fashion Department Program Coordinator of Orange Coast College, where the beneficiary earned his 
associate's degree, which states that an associate's degree "is necessary for employment in the Southern 
California apparel industry." These letters corroborate the discussion in the Handbook that a four-year degree 
is not required for entq into the position. 
The petitioner has, thus, not established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As noted, the petitioner stated in its June 17,2003 letter of support, "We 
do not require a baccalaureate degree for the fashion designer position, as long as the candidates have sufficient 
experience." The petitioner does not have a degree requirement. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(iii)(A)(#) -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. 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)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. For this additional reason, the petition may not be approved. 
The petitioner has failed to establish that the beneficiary is qualified to perform the duties of a specialty 
occupation, or that the position is a specialty occupation. Accordingly, the AAO shall not disturb the 
director's denial of the petition. 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.