dismissed H-1B Case: Graphic Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 8110082 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 29, 2020 
The Petitioner , a non-profit religious and charitable organization , seeks to temporarily employ the 
Beneficiary as a "graphic designer" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that require s both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition , concluding that the record does not 
demonstrate, as required , that the proffered position qualifies as a specialty occupation. 
On appeal , the Petitioner contends that the Director erred in determining that the position of graphic 
designer was not a specialty occupation, contrary to a previous finding. The Petitioner further states 
that the Director erred by using the Department of Labor 's Occupational Outlook Handbook 
(Handbook) for a legal purpose prior to its disclaimer , and also erred in failing to credit evidence that 
(a) a bachelor's degree is normally required to be hired for a position as a graphic designer and (b) the 
course of studies for the degree involves a highly complex body of knowledge. Although the Petitioner 
indicated on August 31, 2019 that a brief would follow the appeal statement within 30 days, as of the 
date of this decision no additional brief has been received. 
Upon de nova review , we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 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 
1 We follow the preponderanc e of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
(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.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( 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 
( 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner claims that it will employ the Beneficiary as a "graphic designer" and describes the 
proffered position, in verbatim, as follows: 
Position Summary: 
Under guidance from Director of External Relations, the position is responsible for 
creating design elements that promote our ministry, our social media outreach as well 
as our programs, products, and services. The position provides input into the 
development of the marketing tactics and oversees some tactics in their entirety. The 
Graphic Design Coordinator works as a contributing member on the marketing team, 
the social media team and other cross-functional teams, as determined. 
Responsibilities: 
• Supports the social media team with design elements to enhance our social 
outreach. 
2 
• Supports execution of marketing plans with graphic design of collaterals in support 
of products, programs, events and brand, and marketing initiatives. 
• Works plan-fully by gathering information and materials from internal customers 
to ensure alignment of design concept. Reviews materials and information to 
develop concept. 
• Illustrates concept by design of rough layout of art and copy regarding arrangement, 
size, type size and style and related aesthetic concepts. Obtains approval of concept 
by submitting rough layout for approval. 
• Prepares final layout by marking finished copy and art. Prepares finished files and 
delivery of art by working with ER Director, internal customers and/or vendors as 
directed. Maintains technical knowledge by attending design workshops; 
reviewing professional publications; participating in professional societies. 
• Develop and maintain a project management process to ensure consistent support 
to all projects. 
• Contributes to team effort by accomplishing related results and organizational 
goals. 
Requirements: 
• Graphic design skills, layout skills, creative service skills, customer focus, 
creativity, flexibility, attention to detail, detail-oriented, and able to handle 
feedback and incorporate into design. 
• As a member of the marketing team, the Graphic Design Coordinator will need to 
possess competencies in time management and prioritization of projects to ensure 
timely execution of tactics. 
• Coordinator must possess the skills to represent the marketing and social media 
teams on other internal teams and discern when necessary to involve Director of 
ER or Social Media Manager. 
• Creative and proactive communication skills to move new ideas and enhance the 
ministry's pastoral goals. 
• Experience with and demonstrated understanding of marketing and the audience 
we serve. 
• Experience and/or bachelor's degree in design with experience or knowledge of 
marketing and communications. 
Minimum Knowledge, Skill and Ability Requirements: 
Must possess working knowledge of graphic design as well as some marketing and 
communications practices and principles. Two years of graphic design experience. 
Excellent oral and written communication skills necessary. Strong strategic sense of 
how to translate internal customer needs to tactical executions that successfully support 
ministry objectives. Knowledge and experience in creating and implementing 
successful projects required. Strong project management skills required. Proficient in 
design applications as well as Word, Outlook and SharePoint. Strong interpersonal 
skills for working cross-functionally, including peer-level and senior leadership. 
3 
The Petitioner further states that the Beneficiary is currently employed in the position of Graphic 
Design Coordinator, and that Graphic Design Coordinators are expected to have a Bachelor's Degree, 
a working knowledge of graphics design and some experience in marketing and communications 
practices and principles as well. In closing, the Petitioner states that "a Bachelor's degree in one of 
these relevant areas is a minimum requirement for the position." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 2 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 3 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we will consider the information contained in 
the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
duties and educational requirements of the wide variety of occupations that it addresses.4 
On the labor condition application (LCA) 5 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Graphic Designers" corresponding 
to the Standard Occupation Classification (SOC) code 27-1024. In pertinent part, the Handbook's 
chapter entitled "How to Become a Graphic Designer" states that although a bachelor's degree in 
graphic design is usually required, someone with a bachelor's degree in another field "can meet most 
hiring qualifications" so long as that individual has pursued "technical training in graphic design." 6 
The Handbook, therefore does not support the proffered position as being a specialty occupation, as it 
does not state that a bachelor's degree in a specific specialty, or the equivalent, is normally required 
for these positions. Though the Handbook states that a bachelor's degree in graphic design or a related 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
4 We do not maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. To satisfy the first criterion, however, the burden ofproofremains on the Petitioner to submit 
sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree 
requirement, or its equivalent, for entry. 
5 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-lB worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73 l(a). 
6 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Graphic Designers, 
at https://www.bls.gov/ooh/a1ts-and-design/graphic-designers.htm (last visited Apr. 27, 2020). 
4 
field is usually required, it continues to state that individuals with a bachelor's degree in another field 
may pursue unspecified "technical training" in graphic design to meet most hiring qualifications. The 
Handbook does not indicate that such "technical training" must be the equivalent of a bachelor's degree 
in a specific specialty. 
Although we do not maintain that the Handbook is the exclusive source of relevant information, to 
satisfy the first criterion, the burden of proof remains on the Petitioner to submit sufficient evidence 
to support a finding that its particular position will normally have a minimum, specialty degree 
requirement, or its equivalent, for entry. To that end, and in the absence of support from the Handbook, 
the Petitioner submits alternative evidence for our consideration under this criterion, including articles 
printed from the Internet and job postings for graphic designer positions with other employers. 
However, none of this alternative evidence establishes the proffered positon as a specialty occupation 
under the first criterion. 7 
The article that appears to have been printed from the website of chron.com states that "as aspiring 
graphic designers typically need a bachelor's degree to break into their career of choice, graduating 
from high school is a prerequisite if you want to enter the industry." However, this same printout 
further states that "If you have a degree in another field and want to become a graphic designer, you 
can still break into the profession by earning an associate's degree or a certificate in graphic design." 
We dispute neither of these statements. However, whether a given degree prepares or qualifies an 
individual to perform the duties of a proffered position is not the focus of the first criterion. The focus 
is whether a given degree is normally required. This printout does not state as such. 
We find the information contained in the study. com printout unpersuasive for similar reasons. In 
pertinent part, that printout states the following: 
"Graphic designers require some formal education. Learn what degree you need to be 
a graphic designer and explore experience requirements, job responsibilities, and 
essential graphic design skills for a career in this industry .... most graphic designers 
earn bachelor's degrees." 
Again, we do not dispute the fact that an individual with a higher level of education likely possesses 
brighter career prospects in this field, or in any field for that matter. The question before us, however, 
is whether a bachelor's degree in a specific specialty, or the equivalent, is normally required. 
Study.com does not reach that conclusion, and its statement that "graphic designers require some 
formal education" is further problematic for the Petitioner's case. 
For the aforementioned reasons, the Petitioner has not met its burden to establish that the particular 
position offered in this matter requires a bachelor's or higher degree in a specific specialty, or its 
equivalent, directly related to its duties in order to perform those tasks. Thus, the Petitioner has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
7 For the sake of efficiency we hereby incorporate our discussion of the evidentiary deficiencies contained in these 
documents into the remaining specialty-occupation criteria. 
5 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: 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 establish 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 Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these 
"factors" to inform the commonality of a degree requirement)). 
As noted above, the Petitioner has not established that its proffered position is one for which the 
Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree in a 
specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the 
matter. 
As referenced and considered by the Director in rendering her decision, the record also contains 
numerous job vacancy announcements submitted for our consideration under this prong. However, to 
merit consideration the job vacancy announcements must advertise "parallel positions," and they must 
also have been placed by organizations that (1) conduct business in the Petitioner's industry and (2) 
are also "similar" to the Petitioner. These job vacancy announcements do not meet that threshold. 
We will first consider whether the advertised job opportunities could be considered "parallel positions." 
The Petitioner attested to DOL on the LCA that the proffered position is a Level II position. 8 
However, one of the advertisers requires four years of work experience and several others require three 
to five years of experience. These extensive experience requirements suggest that the advertised 
positions involve duties that do not "parallel" those of the proffered position. 9 
Nor does the record contain documentary evidence sufficient to establish that these job vacancy 
announcements were placed by companies that (1) conduct business in the Petitioner's industry and 
8 A prevailing wage determination starts with an entry-level wage (Level I) and progresses to a higher wage level (up to 
Level TV) after considering the experience, education, and skill requirements of the Petitioner's job opportunity. U.S. 
Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration 
Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf. 
9 The Petitioner specifically indicated that two years of work experience in graphic design is required. 
6 
(2) are also "similar" to the Petitioner. For example, the record does not contain evidence indicating 
that these companies are similar to the Petitioner in size, scale, and scope of operations, revenue, 
expenditures, or any other fundamental respects. In fact, the job vacancy announcements actually 
suggest otherwise as they include a wide variety of industries such as athletic footwear manufacturers, 
apparel companies, a luxury accessories and lifestyle collections company, and a performing arts 
organization and cultural center. It is not sufficient for the Petitioner to claim that an organization is 
similar to itself and in the same industry without providing a basis for the assertion. 
For all these reasons, we find that the advertised positions do not satisfy this prong of the second criterion, 
as they do not indicate that a bachelor's degree in a specific specialty, or the equivalent, is common to the 
industry in parallel positions among similar organizations. As the documentation does not establish that 
the Petitioner has met this prong of the regulations, further analysis regarding the specific information 
contained in each of the job postings is not necessary. 10 That is, not every deficit of every job posting has 
been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's degree 
in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
We will now consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The record does not sufficiently demonstrate that the necessary knowledge for the proffered position 
is attained through an established curriculum of particular courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent. While a few related courses and subjects may be 
beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. 
The Petitioner has not sufficiently established relative complexity or uniqueness as an aspect of the 
position. We previously discussed the Handbook's findings regarding the occupational category into 
which the Petitioner placed the proffered position. As we have noted, the Handbook does not indicate 
that a bachelor's degree in a specific specialty, or the equivalent, is normally required. The evidence 
of record does not establish that this position is significantly different from other graphic designer 
positions such that it refutes the Handbook's information, and the Petitioner's Level II designation 
does not support any assertion to the contrary. While the Petitioner's job description focuses on the 
knowledge and skills required to perform the duties of the position, the descriptions do not sufficiently 
10 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
7 
detail the complexity or uniqueness of the job duties, the level of independent judgment required in 
the job, or the amount of supervision received. Therefore, the Petitioner has not distinguished the 
proffered position as more complex or unique from other positions that can be performed by persons 
without such a degree. 
The Petitioner claims that the Beneficiary is well-qualified for the pos1t10n and references the 
Beneficiary's qualifications as evidence that the proffered position is a specialty occupation. 
However, the test to establish a position as a specialty occupation is not the education or experience 
of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a 
specific specialty, or its equivalent. Here, the Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position as described. Thus, it cannot be 
concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the Petitioner's claimed 
self-imposed requirements, then any individual with a bachelor's degree could be brought to the 
United States to perform any occupation as long as the Petitioner created a token degree 
requirement. Id. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as information 
regarding employees who previously held the position. 
Although the Petitioner has been in existence since 1947, no evidence has been provided to establish 
that it has ever previously employed any individual as a graphic designer other than the instant 
Beneficiary in this matter. Absent further evidence of its hiring history, the record in insufficient to 
establish that the Petitioner routinely hires only specialty-degreed individuals for the proffered 
position. Furthermore, the Petitioner has made no claim to have ever employed any another individual 
as a graphic designer in the past other than the Beneficiary. We will further address this point later in 
this decision. 
The Petitioner has not provided sufficient evidence to establish that it normally requires at least a 
bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Therefore, it has 
not satisfied the third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific 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 specific specialty, or its 
equivalent. 
8 
In the instant case, relative specialization and complexity have not been sufficiently developed by the 
Petitioner as an aspect of the proffered position. While the position may require that the Beneficiary 
possess some skills and technical knowledge in order to perform the duties of a graphic designer, the 
Petitioner has not sufficiently explained how the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum for entry into the occupation, is required to perform the 
position. 
For the same reasons we discussed under the second prong of the criterion at 8 e.F.R. 
§ 214.2(h)( 4)(iii)(A)(2), we find that the Petitioner has not demonstrated in the record that its proffered 
position is one with duties sufficiently specialized and complex to satisfy 8 e.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4). We incorporate our earlier discussion and analysis on this matter. 
Because the Petitioner has not satisfied one of the criteria at 8 e.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
Finally, we note the Petitioner's statement on appeal that the Director erred in determining that the 
position of graphic designer was not a specialty occupation, contrary to a previous finding. Here, the 
Petitioner appears to be referencing a memorandum authored by William R. Yates (Yates memo) as 
establishing that users must give deference to those prior approvals or provide detailed explanations 
why deference is not warranted. 11 
We note that the Yates memo was rescinded in October 2017. 12 When rescinding the Yates memo, 
users clarified that "an adjudicator's fact-finding authority ... should not be constrained by any prior 
petition approval, but instead should be based on the merits of each case." It was also emphasized that 
"the burden of proof remains on the petitioner, even where an extension of nonimmigrant status is 
sought." As discussed, the Petitioner has not established that the proffered position qualifies as a 
specialty occupation, and has not sustained its burden to establish eligibility for the immigration 
benefit sought. 
Furthermore, the now-rescinded Yates memo did not advise adjudicators to approve an extension 
petition when the facts of the record do not demonstrate eligibility for the benefit sought. On the 
contrary, the memorandum's language acknowledged that a petition should not be approved, where, 
as here, the Petitioner has not demonstrated that the petition should be granted. 
Again, and as indicated in the Yates memo, we are not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593, 597 (eomm'r 1988); see 
11 Memorandum from William R. Yates, Associate Director for Operations, USCTS, HQ 72/11.3, The Significance of a 
Prior CTS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for 
Extension of Petition Validity (Apr. 23, 2004), https://www.uscis.gov/laws/policy-memoranda. 
12 USCTS Policy Memorandum, PM-602-0151, Rescission of Guidance Regarding Deference to Prior Determinations of 
Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (Oct. 23, 2017), 
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference­
PM6020151.pdf. 
9 
also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore, we are 
not be bound to follow a contradictory decision of a service center. La. Philharmonic Orchestra v. 
INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), aff'd, 248 F.3d 1139 (5th Cir. 2001). 
The Yates memo clearly states that each matter must be decided according to the evidence of record. 
On appeal, the Petitioner suggests that USCIS was required to look at the prior record of proceeding 
dealing with a separate adjudication of the approved H-1 B petition filed on behalf of the Beneficiary 
and provide a reason why deference is not warranted. 
A copy of that petition, however, was not included in the record and, therefore, this claim is without 
merit. If a petitioner wishes to have prior decisions considered by USCIS in its adjudication of a 
petition, the petitioner is permitted to submit copies of such evidence that it either obtained itself and/ or 
received in response to a Freedom of Information Act request filed in accordance with the applicable 
regulations. 
It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Each 
nonimmigrant and immigrant petition is a separate record of proceedings with a separate burden of 
proof Each petition must stand on its own individual merits. There is no requirement either in the 
regulations or in USCIS procedural documentation requiring nonimmigrant petitions to be combined 
in a single record of proceedings. 13 Accordingly, the Director was not required to request and/or 
obtain a copy of the prior H-1 B petition. 
Again, the Petitioner in this case did not submit a copy of the prior H-1 B petition and its respective 
supporting documents along with the petition approval notice (which was submitted). As the instant 
record of proceeding does not contain sufficient supporting evidence regarding the prior petition, there 
were no underlying facts to be analyzed and, therefore, no substantive reasons could have been 
provided to explain why deference to the approval of the prior H-lB petition is warranted. The burden 
of proving eligibility for the benefit sought remains entirely with the Petitioner. Section 291 of the 
Act. For this additional reason, the Yates memo does not apply in this instance irrespective of its 
resc1ss10n. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
13 USCTS does not engage in the practice of reviewing previous nonimmigrant petitions when adjudicating extension 
petitions. Given the various and changing jurisdiction over various nonimmigrant petitions and applications, requiring 
previously adjudicated nonimmigrant petitions to be reviewed before any newly filed application or petition could be 
adjudicated would result in extreme delays in the processing of petitions and applications. Furthermore, such a suggestion, 
while being impractical and inefficient, would also be a shift in the evidentiary burden in this proceeding from the petitioner 
to USCIS, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. 
10 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
11