dismissed H-1B Case: Food Science

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DU 20529 
U, S. Citizenship 
and Immigration 
FILE: SRC 04 090 5061 1 Office: TEXAS SERVICE CENTER Date: SEP 0 2 2005 
PETITION: Petition for a Nonimmigrant Worker I'ursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(l S)(HXi)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Oftice 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. Wiernann, Director 
Administrative Appeals Office 
SRC 04 090 506 1 1 
Page 2 
DISCUSSION: The director of the service center denied the noni~nmigrant 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 produces, packages, sells, and distrjbutes German sausage and luncheon meats. It seeks to 
employ the beneficiary as a food scientist. The petitioner, therefore, endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to section 10 1 (a)(] 5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. Cj I I0 1 (a)(l S)(H)(i)(b). 
lhe director denied the petition because the beneficiary is not qualified to perform the proffered position. On 
appeal, counsel states that the beneficiary qualifies for the proffered position, and submits additional and 
previously submitted evidence. 
Section 214(i)(2) of the Act, 8 U.S.C. fj 11 84(i)(2), states that an alien applying for classification as an H-1 B 
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 petilioner 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. $ 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; 
(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 
(3) 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 record of proceeding before the AAO contains, in part: (1) Form 1-1 29 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. The AAO reviewed the record in its entirety before issuing its 
decision. 
SRC 04 090 506 I1 
Page 3 
The petitioner is seeking the beneficiary's services as a food scientist. The director concluded that the letter 
nd educational evaluation from American Evaluation Institute (AEI) failed to 
beneficiary's training and work experience are the equivalent to a U.S. 
bachelor's degree in food science. Counsel refers to an A from AEI, the 
beneficiary's transcripts, and an April 23, 2004 letter from o support his contention 
that the beneficiary qualifies for the proposed position. 
The record reveals that the petitioner has failed to establish that the beneficiary possesses the equivalent to a 
U.S. bachelor's degree in food science or a related degree. 
As the beneficiary does not hold a U.S. baccalaureate degree in a specific specialty or a foreign degree 
determined to be equivalent to a U.S. baccalaureate degree required by the specialty occupation, the petitioner 
must demonstrate that the beneficiary meets the criterion at 8 C.F.R. Ij 21 4.2(h)(4)(iii)(C)(4). 
Pursuant to 8 C.F.R. 5 214.2(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 
and/or experience in the specialty at an accredited college or university which has a 
program for granting such credit based on an individual's training andlor 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); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes 
in evaluating foreign educational credentials; or 
(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, andlor 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. 
Although the evaluation from AEI states that the beneficiary's education and work experience are equivalent 
to a U.S. bachelor's degree in food science offered at accredited institutions of higher education, this evidence 
satisfies none of the criteria under 8 C.F.K. $5 214.2(h)(4)(iii)(D). No evidence depicts the evaluator as an 
official who has authority to grant college-level credit for training andlor experience in the specialty at an 
SRC 04 090 5061 1 
Page 4 
accredited college or university which has a program for granting such credit based on an individual's training 
andtor work experience, as required under 8 C.F.R. 5 214,2(h)(4)(iii)(D)(I). Likewise, no evidence establishes 
8 C.F.R. $5 2 14.2(h)(4)(i ii)(D)(2). According to 8 C.F.R. 3 2 14.2(h)(4)(iii)(D)(3), an educational evaluation 
from a credentials evaluation service that specializes in evaluating foreign educational credentials, such as 
AE1, can be used to equate the beneficiary's credentials to a U.S. baccalaureate degree. But the evaluator 
cannot consider work experience in the evaluation. Ilere, since AEl's evaluation includes work experience it 
does not persuasively establish the beneficiary's qualifications for the proposed position. Moreover, the 
director correctly found that the evidence did not support AEI's determination that the beneficiary possesses 
the educational equivalent to a U.S. bachelor's degree in food science. As noted below, the supporting 
documentation as to the beneficiary's employment is conflicting. As stated by the director, CIS uses an 
evaluation by a credentials evaluation organization of a person's foreign education as an advisory opinion 
only. In Mutter of Se~r, Inc., 19 I&N Dec. 8 1 7 (Comm. 1988), the Board of Immigration Appeals stated that 
where an evaluation is not in accord with previous equivalencies or is in any way questionable, it may he 
discounted or given less weight. Ihe AAO notes that CIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. However, where an opinion is not in accord with other information 
or is in any way questionable, CIS is not required to accept or may give less weight to that evidence. Mafler 
of Caron Internutional, 19 I&N Dec. 79 1 (Comm. 1988). No evidence establishes the regulation at 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(D)(4). 
When CIS determines an alien's qualifications pursuant to 8 C.F.R. $ 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: 
(il Recognition of expertise in the specialty occupation by at least two recognized authorities 
1 in the same specialty occupation ; 
(i i) 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 
I 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: (I) 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. 5 214.2(h)(4)(ii). 
SRC 04 090 5061 1 
Page 5 
6,) Achievements which a recognized authority has determined to be significant contributions 
to the field of the specialty occupation. 
A combination of the beneficiary's education and work experience fails to establish the equivalent of a U.S. 
bachelor's degree in food science or a related field. The record contains the beneficiary's resume, transcript, 
diploma examination certificate, apprenticeship certificate, state elementary school certificate raduation 
certificate from the State Technical College, and employinent certificates from This 
evidence fails to establish that the beneficiary's training and/or work experience included the theoretical and 
practical application of specialized knowledge in food science, which is 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. 
In the April I, 2003 lette-escribes the beneficiary's employment as a butcher and a 
food production manager. The beneficiary produced fresh sausage, boiled and cooked sausage, produced 
pickles and preserved products, carved and cut beef and pork meat, and trained young butcher apprentices. 
The beneficiary also prepared smoked meat, modified its smoking phases, and created a salt mixture for it. 
'I'lie AAO finds the referenced duties parallel those of a chef' or cook, which are occupations that the 
Department of Labor's Occupotionul Outlook Hundbook (the Elandbook) reports do not require a bachelor's 
degree. 
in the April 23, 2004 letter, changes the beneficiary's job duties and job title to food 
specialist, creating a significar~t discrepancy in the employment certifications. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to 
explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in 
fa t lies will not suffice. hkrtfer of MI, 19 I&N Dec. 582, 591-92 (BIA 1988). As the evidence from 
's not reliable, it fails to establish the beneficiary's job title and duties during his 
r employment there. T 1s evidence is also not reliable in establishing whether the beneficiary's experience was 
gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty 
occupation. Whether or not the beneficiary has recognition of authority in a field that is related to food science is 
inconsequential given that no evidence establishes the heneticiary's experience. For these reasons, the petitioner 
fails to establish the beneficiary's qualifications pursua~it to 8 C.F.R. 3 2 14,2(h)(4)(iii)(D)(S). 
As related in the discussion above, the petitioner has failed to establish that the beneficiary possesses the 
equivalent to a U.S. bachelor's degree in food science or a related degree. Accordingly, the AAO shall not 
disturb the director's denial of the petition. 
Beyond the decision of the director, the proposed position is not a specialty occupation. The Department of 
Labor's Occupational Outlook Handbook (the Hcmdbook), a resource that the AAO routinely consults for 
information about the duties and educational requirements of particirlar occupations, reveals that the proposed 
SRC 04 090 5061 1 
Page 6 
position resembles a chef, which is an occupation that does not require a bachelor's degree in a specific 
specialty. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.