dismissed H-1B Case: Film Production

identifying data deldto 
preve~ ' mnwad 
invasion c: : ~rsona! privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 201 5 1677 Office: CALIFORNIA SERVICE CENTER Date: JUL 1 4 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101(a)(l S)(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. 
Ay~dq+&G~ Robert P. Wiemann, C 
Administrative Appeals ofice 
WAC 04 201 51677 
Page 2 
DISCUSSION: The director of the California Service Center denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
The petitioner is a film production company, with one employee. It seeks to employ the beneficiary as a film 
editor pursuant to section I0 l (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 I lOl(a)(l5)(H)(i)(b). The director denied the petition because he determined the position was not a 
specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) counsel's response to the director's request for evidence; (3) the director's 
denial letter; and (4) Form I-290B, with counsel's letter, and previously submitted and new documentation. 
The AAO reviewed the record in its entirety before reaching its decision. 
The issue before the AAO is whether the position qualifies as a specialty occupation. To meet its burden of 
proof in this regard, the petitioner must establish that the employment it is offering to the beneficiary meets 
the following statutory and regulatory requirements. 
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 one 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 term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An occupation which 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 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.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) 
 The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its particular 
position is so complex or unique that it can be performed only by an individual with a 
degree; 
(3) 
 The employer normally requires a degree or its equivalent for the position; or 
WAC 04 201 5 1677 
Page 3 
(4) 
 The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS 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. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). 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. 
The petitioner seeks the beneficiary's services as a film editor. Evidence,of the beneficiary's duties includes: 
the Form 1-129; counsel's July 6, 2004 letter in support of the petition; and his November 15, 2004 response 
to the director's request for evidence. This evidence indicates that the duties of the proffered position would 
require the beneficiary to: 
Supervise and coordinate the editing and assembling of motion picture film, 
television or cable television video tape, and sound tracks; 
Study scripts and confer with producers and directors concerning layout or editing 
techniques to increase dramatic or entertainment value of the production; 
Evaluate and select scenes in terms of dramatic and entertainment value and story 
continuity; 
Trim film segments to specified lengths and reassemble segments in sequence that 
present the story with maximum effect, or edit video tape using editing equipment; 
Review edited and assembled filmlvideotape on screen or monitor to detect and 
correct errors; and 
Present finished product to producers and directors, making revisions as needed. 
Counsel states that the beneficiary's one and one-half years of college education and his 19 years of directly 
applicable experience are the equivalent of a baccalaureate degree in the field of film editing and qualifL him 
to perform the duties of the proffered position. 
To make its determination whether the employment just described qualifies as a specialty occupation, the 
AAO turns to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry into the particular position; and 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 considered by the 
AAO when determining these criteria include: whether the Department of Labor's Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
WAC 04 201 51677 
Page 4 
occupations, reports 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 1 15 1, 1 165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 
1 102 (S.D.N.Y. 1989)). 
In his denial, the director, relying on the Handbook, concluded that the duties of the proffered position were 
those of a producer, employment that does not impose a degree requirement on those seeking entry-level 
employment.' The AAO does not agree. 
As asserted by counsel on appeal, the duties of the proffered position are most closely aligned to those of a 
film editor, employment discussed by the 2006-2007 edition of the Handbook under the occupational title of 
television, video, and motion picture camera operators and editors: 
Film and video editors edit soundtracks, film and video for the motion picture, cable, and 
broadcast television industries . . . . 
Making commercial-quality movies and video programs requires technical expertise and 
creativity. Producing successful images requires choosing and presenting interesting material 
. . . . 
2 
With regard to the preparation required for employment as a film editor, the Handbook indicates the 
following: 
Employers usually seek applicants with a good eye, imagination, and creativity . . . . 
Television, video, and motion picture camera operators and editors usually acquire their skills 
through on-the-job training or formal post secondary training at vocational schools, colleges, 
universities, or photographic institutes. 
 Formal education may be required for some 
positions. 
As the Handbook indicates no specific degree requirement for employment as a film editor, the AAO 
concludes that the performance of the proffered position's duties does not require the beneficiary to hold a 
baccalaureate or higher degree in a related field. Accordingly, the petitioner has not established the proffered 
position as a specialty occupation under the requirements of the first criterion at 8 C.F.R. 
$ 214.2(h)(4)(iii)(A)(I) - a baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position. 
On appeal, counsel notes the limited discussion of film editors provided by the Handbook and contends that 
other Department of Labor publications - the Online Wage Library and the Dictionary of Occupational Titles 
(DOT) - do report a degree requirement for the proffered position. He asserts that the JobZone rating of 4 
assigned to the occupation by the Online Wage Library and the Specific Vocational Preparation (SVP) rating 
1 
 Occupational Outlook Handbook, 2006-2007 Edition, at www.bls.gov/oco/ocos093.htm. 
Zbid., at www.bls.gov/oco/ocos09 1 .htm. 
WAC 04 201 51677 
Page 5 
of 8 indicated by the DOT are proof that the occupation of film editor requires either a baccalaureate degree 
plus experience or up to ten years of vocational preparation. However, neither the DOT, nor the Online Wage 
Library is a persuasive source of information as to whether a job requires the attainment of a baccalaureate or 
higher degree (or its equivalent) in a specific specialty, as required for classification as a specialty occupation. 
They provide only general information regarding the tasks and work activities associated with a particular 
occupation, as well as the education, training, and experience required to perform the duties of that 
occupation. While the DOT assigns a SVP rating of 8 (requiring preparation of over 4 years up to and 
including 10 years) to the occupation of film editor, 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 position would require. The JobZone rating of 4 given to the position by the Online 
Wage Library does not indicate that a bachelor's degree in a specific specialty is required. Accordingly, this 
additional evidence does not establish the proffered position as a specialty occupation under the requirements 
of the first criterion. 
To establish a proffered position as a specialty occupation under the second criterion at 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2), a petitioner must prove either that a specific degree requirement is common to the 
industry in parallel positions among similar organizations, or that the proffered position is so complex or 
unique that it can be performed only by an individual with a degree in the specific specialty. In the instant 
case, the petitioner has not sought to establish the proffered position as a specialty occupation under either of 
the criterion's prongs and has, therefore, submitted no evidence intended to satisfy their requirements. 
Accordingly, the proffered position may not be qualified as a specialty occupation under the second criterion. 
The AAO next considers the criteria at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; and 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 determine a petitioner's ability to meet the third criterion, CIS often reviews the position's employment 
history, including the names and dates of employment of those employees with degrees who previously held 
the position, as well as the petitioner's hiring practices with regard to similar positions. The petitioner has 
not, however, attempted to qualify the proffered position as a specialty occupation based on its normal hiring 
practices. Accordingly, the record does not demonstrate that the position qualifies as a specialty occupation 
under the regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3). 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of its 
position's duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree in a directly-related field. Therefore, to 
establish the proffered position as a specialty occupation, the petitioner must distinguish the beneficiary's 
duties from those typically performed by film editors, employment that the Handbook indicates does not 
normally impose a specific degree requirement on individuals seeking entry-level employment. The AAO 
does not, however, find the evidence of record to indicate, nor the petitioner to claim, that the beneficiary 
would be required to have greater knowledge or skills that those normally possessed by a film editor. 
WAC 04 201 51677 
Page 6 
Instead, counsel contends that the submitted materials from the Online Wage Library and DOT, which report 
that the occupation of film editor requires a "bachelor's degree plus experience or up to 10 years of SVP," 
demonstrate that the position meets the specialized and complex threshold of the fourth criterion. Although 
the AAO notes that the educationlexperience ratings assigned by these publications indicate that employment 
as a film editor requires significant preparation, they do not report, as previously discussed, that employment 
as a film editor would require a job candidate to hold a degree in a directly-related field, as required for 
classification as a specialty occupation. Accordingly, these materials do not qualify the proffered position as 
a specialty occupation under the requirements at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position is a specialty occupation under the requirements at 8 C.F.R. tj 214.2(h)(4)(iii)(A). Therefore, the 
AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 136 1. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.