dismissed H-1B Case: Gas Station/Retail

identifying data deleted to 
prevent clearly unwarranted 
invasion of pf~onal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 047 50987 Office: CALIFORNIA SERVICE CENTER Date: OCT 0 4 7RM 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 1 Ol(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 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 04 047 50987 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is the owner and operator of gas stations, car washes, food marts, and income properties. In 
order to employ the beneficiary as a technical writer, the petitioner filed this petition to classify the position as 
an H-1B nonimmigrant worker in a specialty occupation, pursuant to section I Ol(a)(l S)(H)(i)(b) of the 
lmmigration and Nationality Act, 8 U.S.C. 5 1 1 Ol (a)(l S)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proffered 
position meets the definition of a specialty occupation set forth in the regulation at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). 
On appeal, counsel submits a brief and allied documents grouped in Tabs lettered A through C. Counsel 
contends that the petitioner's business operations necessitate employment of a technical writer with a 
bachelor's or higher degree. 
The director's decision to deny the petition was correct. The AAO bases its decision upon its consideration of 
the entire record of proceeding before it, which includes: (I) the petitioner's Form 1-129 and the supporting 
documentation filed with it; (2) the director's request for additional evidence (RFE); (3) the materials 
submitted in response to the RFE; (4) the director's denial letter; and (5) the Form I-290B, counsel's April 19, 
2004 brief on appeal, and the documents enclosed with the brief under Tabs A through C. 
Section 10 1 (a)(l S)(H)(i)(b) of the Act, 8 U.S.C. $ I 10 1 (a)(] S)(H)(i)(b), provides a nonimmigrant 
classification for aliens who are coming temporarily to the United States to perform services in a specialty 
occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 1 184 (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. 
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. $ 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation: 
WAC 04 047 50987 
Page 3 
which [I] requires theoretical and practical application of a bo4 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 spec@ specialty, or its equivalent, as a minimum for entry into 
the occupation in the United Sqtes. (Italics added.) 
Pursuant to 8 C.F.R. $ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the 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 knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. tj 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. Applying this standard, CIS regularly approves 
H-1 B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created the H- 1 B visa category. 
In its February 23,2004 letter of reply to the RFE, the petitioner described the proffered position as follows: 
The [beneficiary] will be responsible to develop, write and edit all technical materials and 
promotional materials and company handbooks and manuals for utilization by the [petitioner] 
in its government compliance programs as well as in its marketing and promotions to various 
customers, consumers and clientele. The [beneficiary] will receive assignments from the 
[petitioner] with regard to needs for compliance with government regulations, personnel 
management and marketing materials. He will observe, interview personnel and read 
materials to become familiar with specialized and professional requirements, technical 
requirements, regulatory requirements and other relevant information. The [beneficiary] will 
coordinate various activities of the company as needed for the written assignment. [He] will 
review required catalogs, drawings, financial, personnel data and other data relative to 
WAC 04 047 50987 
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various operations, will study specifications and will integrate and delineate needed 
information and material. The [beneficiary] will organize materials and will develop and 
complete written materials as needed. The [beneficiary] will select photographs, drawings[,] 
sketches and other illustrative materials, as well as providing required citations to government 
regulations and compliance programs as need for the written materials. 
The [beneficiary] will be responsible for developing and writing and editing all manuals for 
internal use including personnel manuals, compliance manuals such as gas and oil, EPA, 
emission compliance, OSHA, Workers Compensation, Employment Policies, Permitting 
[R]equirement[s], Department of Weights and Measures, Department of Sanitation, 
Marketing brochures and other such required programs designated by the [petitioner]. 
On appeal, counsel continues to maintain that the petitioner's business operations necessitate the hiring of a 
technical writer with at least a bachelor's degree in order to ensure "compl[iance] with multiple governmental 
statutes and regulations promulgated by several Federal and State agencies including the EPA, Oil and Gas, 
IRS, AQMD, L.A. Dept. of Building and Safety, Labor Board, OSHA, Department of Health, City of Los 
Angeles, Department of Weights and Measures, Department of Toxic [Slubstance Control, Air Resources 
Board, State Fire Marshall, and the Department of Sanitation." (Brief, at page 2.) 
The AAO finds that the duty descriptions and all the other information presented about the proffered position, 
the petitioner's operations, and its practical problems with regulatory compliance do not establish that 
performance of the position necessitates a degree in a specific specialty. The evidence establishes that the 
duties of the position require a person with at least a bachelor's degree because of the reading comprehension, 
research, analytical, and writing skills that are generally associated with the attainment of a college degree 
regardless of the related academic major or concentration of studies. However, the evidence of record does 
not establish that performance of the position requires the theoretical and practical application of a body of 
highly specialized knowledge related to a specific specialty, and the attainment of a baccalaureate or higher 
degree in the specific specialty. Therefore, the evidence of record does not satisfy any criterion of 8 C.F.R. 
2 14.2(h)(4)(iii)(A). 
The petitioner has not satisfied the criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) by establishing that the 
proffered position is one for which the normal minimum entry requirement is at least a bachelor's degree, or 
the equivalent, in a specific specialty closely related to the position's duties. 
CIS recognizes the Department of Labor's (DOL's) Occupational Outlook Handbook (findbook) as an 
authoritative source on the duties and educational requirements of a wide variety of occupations. The section 
"Writers and Editors" at pages 274-277 of the 2004-2005 edition of the Handbook indicates that some 
employers of writers, including technical writers, look for a broad liberal arts background, and most prefer to 
have someone with a bachelor's degree in communications, journalism, or English as the normal minimum 
educational requirement. Because the Handbook indicates that a broad liberal arts background is an 
acceptable minimum requirement for entry into the position, the position cannot be found to require a degree 
in a specific specialty under the first criterion. Since there must be a close corollary between the required 
specialized studies and the position, the requirement of a degree of generalized title, such as business 
WAC 04 047 50987 
Page 5 
administration or liberal arts, without further specification, does not establish eligibility. See Matter of 
Michael Hertz, Assoc., 19 I&N Dec. 558, 560 (Comm. 1988). Accordingly, the Handbook does not support 
the proffered position as a specialty occupation. 
The petitioner's reference, in its RFE reply, to the section on technical publication writers in the DOL's 
Dictionary of Occupational Titles (DOT) is not persuasive. The DOT has little relevance for specialty 
occupation determinations. In contrast to the Handbook, it does not identify particular degrees that employers 
require for specific occupations. The worker function and SVP (Specific Vocational Preparation) ratings do 
not establish whether a position requires the minimum of a bachelor's degree, or its equivalent, in a specific 
specialty. An SVP rating is meant to indicate only the total number of years of vocational preparation 
required for a particular position. 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. Further, the DOTjob description is substantially broader than proposed duties described in the 
record. 
The record's job advertisements from other firms are not probative of any criterion of 8 C.F.R. 
5 214.2(h)(4)(iii)(A), as the evidence does not establish substantial similarity between the performance 
requirements of the proposed duties and those of the advertised positions. 
As the evidence of record does not establish that the proffered position is one with a normal minimum entry 
requirement of a baccalaureate or higher degree, or the equivalent, in a specific specialty, the petitioner has 
not satisfied the criterion at 8 C.F.R. 9 214,2(h)(4)(iii)(A)(I). 
The petitioner has not presented evidence to satisfy the first alternative prong of 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(Z), which is for a position with a requirement for at least a bachelor's degree in a 
specific specialty that is common to the petitioner's industry in positions that are both (1) parallel to the 
proffered position and (2) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by CIS 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 films "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 Hirmlaker Corp. v. Sava, 7 12 F. Supp. 1095, 1 102 
(S.D.N.Y. 1989)). 
As discussed above, the petitioner has not established that the proffered position is one for which the Handbook 
reports an industry-wide requirement for at least a bachelor's degree in a specific specialty. The record contains 
no attestations from individuals or other firms or from a professional association that the position is one for which 
employers in the petitioner's industry have a routine practice of recruiting and hiring only persons with at least a 
bachelor's degree in a specific specialty. As noted earlier, the record's job advertisements from other firms are 
inconsequential. As the evidence does not establish that the proffered position and those advertised are 
substantially similar in their specific duties and actual performance requirements, and as the advertised 
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Page 6 
positions are not in any of the industries identified by the petitioner for the beneficiary's work, the job 
advertisements are not relevant to 8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(2). 
The petitioner has not presented any evidence to establish that the proffered position qualifies as a specialty 
occupation in accordance with 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), that is, by virtue of an established history of the 
petitioner's recruiting and requiring for this position only persons with at least a bachelor's degree in a specific 
specialty. This appears to be the first time that the petitioner is proffering the technical writer position. 
The evidence of record does not establish either that this particular position is so complex or unique that it can 
be performed only by an individual with a degree (so as to satisfy the second alternative criterion of 8 C.F.R. 
tj 214.2(h)(4)(iii)(A)(2)), or that the specific duties are so specialized and complex that their performance 
requires knowledge usually associated with at least a baccalaureate degree in a specific specialty (so as to satisfy 
the criterion of 8 C.F.R. &j 214,2(h)(4)(iii)(A)(4)). On appeal, the petitioner asserts that the complexity 
required for a specialty occupation resides in the variety, complexity, and highly technical nature of the 
regulations that its technical writer would address. The petitioner's contentions in this regard are not 
persuasive, as they are not substantiated by the evidence. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Without documentary evidence to support the claim, the assertions of counsel will not satisfy 
the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbenu, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any 
criterion of 8 C.F.R. fj 214.2(h)(4)(iii)(A), the director's decision shall not be disturbed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.