dismissed H-1B Case: Health Care

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
\ 
\? 2, 
FILE: EAC 04 056 53071 Office: VERMONT SERVICE CENTER Date: APR 0 3 20061 
IN RE: Pet it ioner: 
Beneficiary: c 
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. 8 1 10 l(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. 
/ Pz/ Robert &J~/I-- P. Wiemann 
Administrative ~~~et&j&ffice 
EAC 04 056 53071 
Page 2 
DISCUSSION: The acting director of the Vermont 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 health care center, with 330 employees. It seeks to hire the beneficiary as a practice nurse 
in gerontology. The acting director denied the petition based on her determination that the record did not 
establish the proffered position as 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) the petitioner's response to the director's request for evidence; (3) the 
director's denial letter; and (4) Form I-290B, with a statement from the petitioner and additional evidence. 
The AAO reviewed the record in its entirety before reaching its decision. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meet its burden of proof in this regard, the petitioner must establish that the job 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. 9 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. 9 214.2(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. 9 214.2(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 
EAC 04 056 53071 
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(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. Cf 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 states that it is seeking the beneficiary's services as a practice nurse in gerontology. Evidence 
of the beneficiary's duties includes: the Form 1-129, the petitioner's October 23, 2003 letter of support; and 
the petitioner's response to the director's request for evidence. 
The petitioner has stated that the proffered position would require the beneficiary to: 
Provide direct nursing care to elderly residents; 
Supervise day-to-day nurse activities performed by nurses and nursing assistants in 
accordance with current federal, state and local standards, guidelines and regulations 
governing the petitioner's facility; 
Delegate and exercise authority on the administration of medication and treatment 
plans; and 
Delegate authority to subordinates who are responsible and accountable in carrying 
out assigned duties within the elderly patient population. 
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. 9 214.2(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 
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 1,1165 (D.Min. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 
(S.D.N.Y. 1989)). 
In her denial, the director found that the record did not establish that the duties of the proffered position were 
more complex than those performed by registered nurses throughout the nursing industry. Based on this 
EAC 04 056 53071 
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determination, she determined that the position did not require the beneficiary to have the minimum of a 
baccalaureate or higher degree. The AAO agrees. 
In reaching this conclusion, the AAO has relied upon the discussion of registered nurses in the 2006-2007 
edition of the DOL Handbook. ' It finds the duties of the proffered position, as indicated by the petitioner, to 
reflect responsibilities the Handbook indicates are routinely performed by registered nurses. As described: 
Registered nurses (RNs), regardless of specialty or work setting, perform basic duties that 
include treating patients, educating patients and the public about various medical conditions, 
and providing advice and emotional support to patients' family members. RNs record 
patients' medical histories and symptoms, help to perform diagnostic tests and analyze 
results, operate medical machinery, administer treatment and medications, and help with 
patient follow-up and rehabilitation. 
wlurse administrators supervise nursing staff, establish work schedules and budgets, and 
maintain medical supply inventories . . . . 
As to whether the minimum academic entry requirement into the occupation of registered nurse is a 
baccalaureate or higher degree, or its equivalent, the Handbook states: 
In all States and the District of Columbia, students must graduate from an approved nursing 
program and pass a national licensing examination, known as the NCLEX-RN, in order to 
obtain a nursing license . . . . All States require periodic renewal of licenses, which may 
involve continuing education. 
There are three major educational paths to registered nursing: A bachelor's of science degree 
in nursing (BSN), an associate degree in nursing (ADN), and a diploma. BSN programs, 
offered by colleges and universities, take about 4 years to complete . . . . ADN programs, 
offered by community and junior colleges, take about 2 to 3 years to complete . . . . Diploma 
programs, administered in hospitals, last about 3 years . . . . Generally, licensed graduates of 
any of the three types of educational programs qualify for entry-level positions as staff 
nurses. 
In that the Handbook indicates that individuals with associate degrees in nursing, as well as nursing diplomas, 
may obtain entry-level employment as registered nurses, the AAO finds that the petitioner's proffered 
position does not qualify as a specialty occupation under the first criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A). 
- -- - 
1 
 The 2006-2007 edition of the Handbook at www.bls.gov/oco/ocos083 .htm. 
EAC 04 056 53071 
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In reaching its decision, the AAO has noted the petitioner's contention on appeal that the proffered position is 
that of an advanced practice nurse or clinical nurse specialist, as well as the submission of printed material 
from the website of the American Association of Colleges of Nursing discussing the certification and 
regulation of advanced practice nurses. It has also reviewed the November 27, 2002 memorandum issued by 
the former Immigration and Naturalization Service (INS), now CIS, which discusses the degree requirements 
for advanced practice nurses, submitted by the petitioner in response to the director's request for evidence. 
See Memorandum from Johnny N. Williams, Executive Associate Commissioner, Office of Field Operations, 
U.S. Immigration and Naturalization Service, Department of Justice, Guidance on Adjudication of H-IB 
Petitions Filed on Behalf of Nurses, HQISD 7016.2.8-P (November 27, 2002). Moreover, the AAO has 
considered the petitioner assertions on appeal regarding the specialized nature of the beneficiary's duties - the 
performance of physical examinations, the ordering and interpretation of diagnostic tests, the formulation of 
medical plans and prognoses, the prescribing or recommendation of drugs or other forms of treatment, and the 
referral of patients for consultation or treatment - duties that are considerably more detailed and specialized 
than those previously described. However, the AAO has not found the materials provided by the petitioner, 
or its claims regarding the specialized nature of the proffered position to be persuasive, and it will not 
consider the duties described by the petitioner on appeal. 
As previously noted, it is not the title of a proffered position, but its duties, that must establish it as a specialty 
occupation. In the instant case, although the petitioner has assigned to the proffered position the title of 
advanced practice nurse and asserted its complexity, it has failed to describe duties that distinguish the 
position from nursing employment that may be performed by individuals who do not hold baccalaureate 
degrees. Therefore, the material from the website of the American Association of Colleges of Nursing and 
the November 27, 2002 INS memorandum, which address advanced practice nurses, are not relevant to these 
proceedings. 
The AAO acknowledges that the significantly more complex duties the petitioner offers on appeal, 
particularly those related to prescribing medicine and treatment, describe the type of primary health care 
provided by advanced practice nurses. It has not, however, considered these duties in determining the nature 
of the proffered position as they were not among those discussed by the petitioner at the time of filing. On 
appeal, a petitioner may not offer a new position to the beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated job responsibilities. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). Accordingly, the duties the AAO 
considered in this proceeding have been those indicated by the petitioner at the time of filing and elaborated 
upon in its response to the director's request for evidence. 
To establish eligibility under the second criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A), a petitioner must prove 
that a specific degree requirement is common to its 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 submitted no evidence that responds to 
either of the criterion's prongs. Accordingly, the record does not establish the proffered position as a 
specialty occupation based on an industry-wide degree requirement or its complexity or unique nature. 
EAC 04 056 53071 
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The AAO next considers the criteria at 8 C.F.R. $4 214.2(h)(4)(iii)(A)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; 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, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including names and dates of employment, of those employees 
with degrees who previously held the position, and copies of those employees' diplomas. While the petitioner 
has provided no specific evidence of its hiring practices, the AAO notes that, in response to the director's 
request for evidence, it indicated that of the 100 nurses it employs, only 29 are registered nurse and of the 29, 
only four hold baccalaureate degrees. Based on this information, the AAO concludes that the petitioner is 
unable to establish the proffered position as a specialty occupation based on its normal hiring practices for its 
nursing staff. 
The fourth criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the 
specific duties of its position is so specialized and complex that the knowledge required to perform those 
duties is usually associated with the attainment of a baccalaureate or higher degree. In the instant case, the 
AAO finds no evidence to establish that the duties of the proffered position, as described at the time of filing, 
require greater knowledge or skill than that normally needed by registered nurses without a bachelor's degree 
who may supervise patient care. Further, the proffered position, as described, does not appear to represent a 
combination of jobs that would require a beneficiary to have a unique set of skills not normally possessed by 
a registered nurse. As a result, the record fails to establish that the proffered position meets the specialized 
and complex threshold of the fourth criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A). 
For reasons related in the preceding discussion, the petitioner has failed to establish that its proffered position 
is a specialty occupation. Accordingly, 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. 
$ 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.