dismissed H-1B Case: Health Education

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE:
INRE:
SRC0521751491
Petitioner:
Beneficiary:
~A~ 03 2007
Office: TEXAS SERVICE CENTER Date:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)( i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 217 51491
Page 2
DISCUSSION: The director of the Texas 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 seeks to employ the beneficiary as a Clinic Instructor pursuant to section 101(a)(15)(H)(i)(b) of
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101 (a)(15)(H)(i)(b). The director denied the
petition based on a determination that the position was not a specialty occupation.
On appeal the petitioner asserts, through counsel, that the evidence establishes the petitioner has a need for a
clinic instructor and that the proffered position is a specialty occupation. Specifically, the petitioner asserts
that the proffered position duties "inherently involve and require the services of a professional with an
education at least equivalent to Bachelor's Degree in a health related specialty." The petitioner asserts further
that the evidence "shows that the petitioner has routinely employed only college graduates with specific
degrees in a specialized area to carry out the teaching duties." Lastly, the petitioner asserts that the proffered
position's duties, "involve supervising the work of these professionals, as well as teaching.'?'
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the
director's request for additional evidence (RFE); (3) the petitioner's response to the director's request; (4) the
director's denial letter; (5) Form 1-290B. The AAO reviewed the record in its entirety before issuing its
decision.
Section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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.
The term "specialty occupation" is further defined at 8 C.F.R. § 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. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of
the following criteria:
1 Counsel indicates on the Form 1-290B, Notice of Appeal to the Administrative Appeals Office (AAO), that
he will send a brief and/or evidence to the AAO within 30 days of filing the Form 1-290B. No brief or
evidence was received by the AAO. It is further noted that counsel did not reply to a subsequent AAO fax
requesting copies of any additional evidence and/or brief that may have been submitted for appeal purposes.
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(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.
U.S. 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.
In order 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 (5 th 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.
In the present matter, the petitioner asserts in the Form 1-129 that it seeks the beneficiary's services as a clinic
instructor. It is noted that the job description contained in the record refers to the position as a health educator
position, and in response to the director's RFE, the petitioner refers to the proffered position as a clinical
instructor position. The petitioner states in its Labor Condition Application that the position is that of a health
instructor.
Evidence of the beneficiary's duties is included in the Form 1-129 and attached job description, and the
petitioner's response to the director's RFE. The job description contained in the record reflects that the
petitioner's health educator position requires the beneficiary to have, "great knowledge of conventional and
non-conventional medicines," and to "provide workshops to patients and healthcare professionals." In its
response to the director's RFE, the petitioner indicates that its clinical instructor position requires the
beneficiary to instruct other professionals in the alternative and integrative medical field, and to prepare and
conduct teaching workshops for other professionals not employed by the petitioner. The petitioner asserts
that, "only a physician with great experience working and teaching within the field of conventional medicine,
as well as open minded and versed in alternative therapies will do."
To make its determination whether the employment described qualifies as a specialty occupation, the AAO
turns first to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) 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
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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 Handbook, on which the AAO routinely relies for
the educational requirements of particular occupations, 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 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)).
To determine whether the duties of the proffered position support the petitioner's characterization of its
employment, the AAO turns to the 2006-2007 edition of the Handbook. It is noted that the Handbook does
not contain a description for a clinic instructor, health educator, or health or clinical instructor. The
Handbook's discussion on postsecondary teachers, contained on pages 223-24 provides, however, that:
Postsecondary teachers instruct students in a wide variety of academic and vocational
subjects beyond the high school level that may lead to a degree or to improvement in one's
knowledge or career skills. These teachers include college and university faculty,
postsecondary career and technical education teachers, and graduate teaching assistants.
Postsecondary vocational education teachers, also known as postsecondary career and
technical education teachers, provide instruction for occupations that require specialized
training, but may not require a 4-year degree ....
The Handbook discusses educational requirements for postsecondary teachers on page 225, stating in
pertinent part that:
The education and training required of postsecondary teachers varies widely, depending on
the subject taught and educational institution employing them. Education requirements for
teachers are generally the highest at 4-year research universities while experience and
expertise in a related occupation is the principal qualification at career and technical
institutes.
Training requirements for postsecondary career and technical education teachers vary by
State and by subject. In general, teachers need a bachelor's or higher degree, plus at least 3
years of work experience in their field. In some fields, a license or certificate that
demonstrates one's qualifications may be all that is required.
The Handbook reflects that the educational requirements for postsecondary teachers range from no degree
requirement to a bachelor's or higher degree requirement.
The AAO finds the discussion on postsecondary career education teachers to be generally reflected in the
petitioner's description of the position's duties. However, the AAO finds that the duties of the proffered
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position as listed by the petitioner, are generic and provide no meaningful description of the specific tasks that
the beneficiary would perform for the petitioner on a daily basis. The AAO requires information about the
specific duties of a proffered position in the context of the petitioning entity's business operations, in order to
make a determination regarding the nature of that position and its degree requirements, if any. In the present
matter, the record does not contain a detailed, meaningful description of the proffered position, or of the
beneficiary's duties. The AAO is thus unable to determine the educational requirements for the proffered
position.
The record also lacks a meaningful and detailed description of the petitioner's business operations. The
petitioner's Form 1-129 reflects that the petitioner has one employee. The petitioner provides no information
regarding the employee or the employee's position. The petitioner indicates in response to the director's
RFE, that it has hired independent contractors in the past. However, the petitioner provides no corroborative
evidence of such hiring. Furthermore, the record lacks wage payment information for any employees. The
petitioner also provides no federal tax information or annual income information for its company, and the
petitioner provides no detailed evidence or information to establish the nature of its business or its business
operations. It is noted that the record contains a l-page brochure indicating that Integrated Health & Wellness
performs acupuncture, homeopathy, samassati colortherapy, reiki, herbaology, and workshops relating to
various emotional, stress and physical ailments of youth and teens. The brochure is not discussed or
explained by the petitioner, and the brochure provides no specific information regarding workshops,
participants, or instructors, or regarding the petitioner's organizational structure, employees, or customers.
The record thus fails to demonstrate that the petitioner operates a business, or that the petitioner provides
health-related workshops to health professionals or anyone else.
Going on record without supporting documentation is not sufficient to meet the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In the present matter, the record lacks evidence to support
the contention that the petitioner operates a health-care facility or conducts health-related workshops, or that
the petitioner will employ a clinic or health instructor with a level of knowledge that may only be obtained
through a baccalaureate degree in a health related field. Accordingly, the AAO finds that the petitioner has
failed to establish that the proffered position is a specialty occupation under the criterion at 8 C.F.R. §
214.2(h)(4)(iii)(A)(1), which requires that a baccalaureate or higher degree or its equivalent is normally the
minimum requirement for entry into the particular position. See Defensor v. Meissner, 201 F. 3d. 384 (5 th Cir.
2000).
The petitioner has also failed to establish that the proffered position qualifies as a specialty occupation under
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which states that a "[d]egree 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." The record
contains no information from a professional association in the petitioner's industry, and no letters or affidavits
from firms or individuals in the industry attesting to the educational requirements of the proffered position.
Moreover, the record fails to demonstrate that the petitioner operates a health and wellness center or that it
conducts health-related workshops. The evidence also fails to establish the specific job duties of the proffered
position. The petitioner has thus failed to establish that a degree requirement is common within the
petitioner's industry in parallel positions among similar organizations. The petitioner has additionally failed
to establish the company's position needs, or that the proffered position duties are so complex or unique that
they can only be performed by an individual with a degree in a related specialty.
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The petitioner has additionally failed to establish that the proffered position qualifies as a specialty occupation
under the third prong of 8 C.F.R. § 214.2(h)(4)(iii)(A), which states that, "the employer normally requires a
degree or its equivalent for the position." The record contains no evidence of the petitioner's past hiring
practices for the proffered position, and the petitioner does not claim or establish that the proffered position
existed in the past. The petitioner has therefore failed to establish that the position is a specialty occupation
pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).
Lastly, the record fails to establish that the proffered position qualifies as a specialty occupation under 8
C.F.R. § 214.2(h)(4)(iii)(A)(4), which states that, "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." The description of the proffered position duties is too generic to determine
the specific tasks that the beneficiary would perform for the petitioner. The petitioner has provided no
context or description of the specific tasks to be performed by the beneficiary, and the record contains no
evidence to establish any specialized and complex nature of those tasks. This generic description makes it
impossible to determine whether the proffered position's duties meet the specialized and complex threshold of
the fourth criterion contained in 8 C.F.R. § 214.2(h)( 4)(iii)(A). Accordingly, the petitioner has failed to
demonstrate that the proffered position is a specialty occupation under the requirements at 8 C.F.R. §
214.2(h)( 4)(iii)(A)( 4).
Based on the above discussion, the AAO finds that the petitioner has failed to establish that the proffered
position meets any of the requirements of a specialty occupation as set forth in section 241 of the Act, and at 8
C.F.R. § 214.2(h)(4)(iii)(A).
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 its burden. The appeal will therefore be dismissed and the petition
denied.
ORDER: The appeal is dismissed. The petition is denied.