dismissed H-1B Case: Healthcare

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 056 5033 1 Office: CALIFORNIA SERVICE CENTER Date: 0 8 !ps 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 1 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(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, Director 
Administrative Appeals Office 
WAC 04 056 5033 1 
Page 2 
DISCUSSION: The director 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 skilled nursing facility that seeks to employ the beneficiary as an activity director. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimrnigrant worker in a specialty 
occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proposed 
position qualifies for classification as a specialty occupation, and that the beneficiary does not qualify to 
perform the duties of a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 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 
(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 occupation7' is hrther defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of hghly 
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 hlgher 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. 3 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(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. 
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Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
9 214.2(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 proposed position. 
In determining whether a proposed position qualifies as a specialty occupation, CIS does not rely simply 
upon the position's title. The specific duties of the proposed 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 beneficiary and make a determination as to whether the proposed position in fact 
qualifies for classification as a specialty occupation. CJ: 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 record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's denial letter; and (3) the Form I-290B and supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
In the letter of support submitted with thie 1-129 filing, the petitioner described the duties of the proposed 
position as follows: 
[Pllan, develop, organize[,] and evaluate assistance programs and activities for our 
clients with mental, behavioral, emotional, psychological, physical, social[,] or cultural 
deprivation or burdens. 
[Dlevise, formulate[,] and put together activities, outreach plans, and support materials 
to meet the individual needs of our residents, considering such factors as gender, 
emotional status, or degree of difficulties. 
[Clonfer with relatives, other social specialists, community workers, and allied service 
professionals to develop a personalized program for clients with individual and unique 
requirements. 
[Olrganize, direct, and coordinate the programs required for our residents' independent 
subsistence and self-sufficiency such as in food, clothing, shelter, medical attention, 
schooling, and in social and religous activities involvement. 
[Pllan, develop, and help administer programs to develop our patients' feeling of self- 
worth and self-confidence as productive members of the society. 
[Llead, conduct, or organize tuition-oriented classes, games and music, counseling 
sessions, self-help orientations, community-oriented seminars[,] and vocational trainings 
to instill into our patients' minds and hearts wholesome social values. 
[Elvaluate and assess activities and programs for possible revisions, improvements, 
[and] expansion or integration of overlapping projects into a more comprehensive, 
economical, and feasible approach. 
[Plrepare and submit written reports to project directors and activity administrators on 
the outcome of programs or activities in order to address problem areas to ensure the 
most efficient and highest quality of services rendered. 
[Slupervise programs, policies[,] and undertahngs regarding participant involvement, 
operational requirements, would-be beneficiaries, and benefit coverage. 
[Slpearhead and oversee the preparation of our facility's budget as well as in prioritizing 
financial allocations and in the sourcing of funds for social activity services department. 
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[Pllay the lead role in the research and implementation of innovative methods of 
providing behavioral-modification and social activity services to our adult residents. 
[Dlirect, supervise, monitor, and give specific job assignments to other social activity 
workers and allied group leaders and participate in the kng and performance 
appraisals of other personnel in his department. 
On appeal, counsel contends that the proposed position in fact qualifies as a specialty occupation, and that the 
director erred in denying the petition. Counsel asserts that in denying the petition, the director caused the 
"actual business needs vis-A-vis the real-world market competition" of the petitioner to "rigidly and 
summarily be buried into deep oblivion." Counsel also contends that the director's denial constitutes an 
abuse of discretion. 
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title 
of the position and determines, fi-om a review of the duties of the position and any supporting evidence, 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the 
minimum for entry into the occupation as required by the Act. The AAO routinely consults the 
Occupational Outlook Handbook (the Handbook) for its information about the duties and educational 
requirements of particular occupations. 
A review of the duties of the proposed position finds them closely aligned to the responsibilities of 
recreational therapists. As discussed in the Handbook: 
Recreational therapists, also referred to as therapeutic recreation specialists, provide 
treatment services and recreation activities to individuals with disabilities or illnesses. 
Using a variety of techniques, including arts and crafts, animals, sports, games, dance and 
movement, drama, music, and community outings, therapists treat and maintain the 
physical, mental, and emotional well-being of their clients. Therapists help individuals 
reduce depression, stress, and anxiety; recover basic motor functioning and reasoning 
abilities; build confidence; and socialize effectively so that they can enjoy greater 
independence, as well as reduce or eliminate the effects of their illness or disability. In 
addition, therapists help integrate people with disabilities into the community by teaching 
them how to use community resources and recreational activities. Recreational therapists 
should not be confused with recreation and fitness workers, who organize recreational 
activities primarily for enjoyment. (Recreation and fitness workers are discussed 
elsewhere in the Handbook.) 
Recreational therapists assess clients on the basis of information the therapists learn from 
standardized assessments, observations, medical records, the medical staff, the clients' 
families, and the clients themselves. They then develop and carry out therapeutic 
interventions consistent with the clients' needs and interests. For example, clients who 
are isolated from others or who have limited social skills may be encouraged to play 
games with others, and right-handed persons with right-side paralysis may be instructed 
in how to adapt to using their unaffected left side to throw a ball or swing a racket. 
Recreational therapists may instruct patients in relaxation techniques to reduce stress and 
tension, stretching and limbering exercises, proper body mechanics for participation in 
WAC 04 056 5033 1 
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recreation activities, pacing and energy conservation techniques, and individual as well as 
team activities. In addition, therapists observe and document a patient's participation, 
reactions, and progress. 
Community-based recreational therapists may work in park and recreation departments, 
special-education programs for school districts, or programs for older adults and people 
with disabilities. Included in the last group are programs and facilities such as assisted- 
living, adult daycare, and substance abuse rehabilitation centers. In these programs, 
therapists use interventions to develop specific skills, while providing opportunities for 
exercise, mental stimulation, creativity, and fun. Although most therapists are employed 
in other areas, those who work in schools help counselors, teachers, and parents address 
the special needs of students, including easing disabled students' transition into adult life. 
The Handbook reports the following educational requirement for individuals seeking employment in this 
field: 
A bachelor's degree in therapeutic recreation, or in recreation with a concentration in 
therapeutic recreation, is the usual requirement for entry-level positions. Persons may 
qualify for paraprofessional positions with an associate degree in therapeutic recreation 
or a healthcare-related field. An associate degree in recreational therapy; training in art, 
drama, or music therapy; or qualifying work experience may be sufficient for activity 
director positions in nursing homes. 
These findings do not support counsel's contention that a bachelor's degree is required for entry into the 
occupation. The AAO finds that the duties of the position coincide with those of an activity director at a 
nursing home. The duties of the propos,ed position do not describe a recreational therapist with a four- 
year degree, providing therapy to reduce depression, stress, and anxiety; recover basic motor functioning 
and reasoning abilities; use interventions to develop specific skills, and the like. The Handbook reveals 
that an associate's degree, or work experience, may be sufficient for a position as an activity director in a 
nursing home. Consequently, the proposed position does not qualify for classification as a specialty 
occupation under 8 C.F.R. 5 2 14.2(h)(4)(iii)(A)(I). 
Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. However, counsel 
has presented no evidence to demonstrate that the proposed position qualifies under this prong. 
Therefore, the proposed position does not qualify as a specialty occupation under the first prong of 
8 C.F.R. 5 214,2(h)(4)(iii)(A)(2). 
The second prong of 8 C.F.R. Fj 214.2(h)(4)(iii)(A)(2) requires the petitioner to prove that the duties of the 
proposed position are so complex or unique that only an individual with a degree can perform them. The 
nature of the duties of the proposed position as set forth in the petition does not support such a finding, as 
they are similar to those set forth in the Handbook, which states that the only requirement for employment as 
an activity director at a nursing home is an associate's degree or work experience. The record contains no 
evidence that would support a finding that the position proposed here is more complex or unique than such 
positions at organizations similar to the petitioner. 
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Therefore, the petitioner cannot establish that the proposed position qualifies as a specialty occupation under 
either prong of 8 C.F.R. 5 2 14.2(h)(4)(iii)(A)(2). 
The AAO next turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3), which requires that the petitioner 
demonstrate that it normally requires a degree or its equivalent for the position. 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 the names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
No evidence has been submitted to prove, nor has counsel asserted, that the proposed position qualifies as 
a specialty occupation under this criterion. Therefore, the third criterion of 8 C.F.R. $2 14.2(h)(4)(iii)(A) 
cannot be satisfied. 
Finally, the AAO turns to the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4), which requires a 
demonstration 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. 
To the extent that they are depicted in Ithe record, the duties of the proposed position do not appear so 
specialized and complex as to require the highly specialized knowledge associated with a baccalaureate or 
higher degree, or its equivalent, in a specific specialty. Again, there is no information in the record to 
support a finding that the proposed position is more complex or unique than activity director positions in 
other nursing facilities. As the Handbook reveals, such facilities do not normally impose a bachelor's degree 
requirement. Therefore, the evidence does not establish that the proposed position is a specialty 
occupation under 8 C.F.R. $ 2 14.2(h)(4)(iii)(A)(4). 
The proposed position does not qualify ;for classification as a specialty occupation under any of the four 
criteria set forth at 8 C.F.R. $3 214.2(h)(4)(iii)(A)(I), (2), (3), and (4), and the petition was properly 
denied. As the position in this petition is not a specialty occupation, the beneficiary's qualifications to 
perform the duties of a specialty occupation are inconsequential to the outcome of the proceeding. 
Finally, counsel raises the issue of the director's decision not to issue an WE. In addressing the first 
prong of 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2), counsel states that the petitioner would have submitted 
evidence to qualify under this criterion had the petitioner "been given his rightful chance and afforded due 
legal process rather than an instant denial of the subject 1-129 petition." 
However, counsel's contention fails. 8 C.F.R. tj 103.2(b)(8) requires the director to request additional 
evidence only in instances "where there is no evidence of ineligibility, and initial evidence or eligibility 
information is missing." The director is not required to issue an RFE in every potentially deniable case. 
If the director determines that the initial 'evidence supports a decision of denial, the cited regulation does 
not require solicitation of further documentation. 
Furthermore, even if the director had committed a procedural error by failing to solicit hrther evidence, it 
is not clear what remedy would be appropriate beyond the appeal process itself. The petitioner has in fact 
filed an appeal, and therefore it would serve no useful purpose to remand the case simply to afford the 
petitioner the opportunity to supplement the record with new evidence. 
Counsel states that the petitioner "would have been willing" to establish that its degree requirement is an 
industry norm had the director issued an RFE. However, if such evidence exists, the petitioner should 
WAC 04 056 5033 1 
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have presented it on appeal. Without this, the only evidence documenting the claim that the petitioner's 
bachelor's degree requirement is an industry norm is the unsupported assertion that such is the case. 
Simply going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of cZalfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). In these 
proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See Matter of 
Brantigan, 1 1 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of evidence that 
the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 
(BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 11 I&N Dec. 15 1 (BIA 
1965). Such a demonstration has not been made. 
w 
Although counsel asserts that the petitioner was not afforded "due legal process," he has not shown that 
any violation of the regulations resulted in "substantial prejudice" to the petitioner. See De Zavala v. 
Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an alien "must make an initial showing of 
substantial prejudice" to prevail on a due process challenge). The petitioner has fallen far short of meeting 
this standard. A review of the record and the adverse decision indicates that the director properly applied 
the statute and regulations to this case. The petitioner's primary complaint is that the director denied the 
petition. As previously discussed, the petitioner has not met its burden of proof and the denial was the 
proper result under the regulation. Accordingly, this assertion is without merit. 
The proposed position does not qualifir for classification as a specialty occupation. Accordingly, the 
AAO will 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. 
5 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.