dismissed H-1B Case: Healthcare

PVBUC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 003 54603 Office: CALIFORNIA SERVICE CENTER Date: SEP 0 2 2005 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 10 I (a)( 1 S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ I I0 1 (a)( 1 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. 
Robert P. Wiernann, Director 
Administrative Appeals Office 
WAC 04 003 54603 
Page 2 
DISCUSSION: The director of the California 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 health organization that providt:s health related services to senior citizens. It seeks to hire 
the beneficiary as a services program director. 'rhe director denied the petition based on his determination 
that the petitioner had failed to establish that its proffered position was a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-1 29 and supporting documentation; (2) the 
director's request for evidence; (3) petitioner's responses to the director's requests for evidence; (3) the 
director's denial letter; and (4) Form I-290B, with petitioner's brief and supporting documents. The AAO 
reviewed the record in its entirety before reaching its decision. 
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its 
burden of proof in this regard, a petitioner must establish that the job it is offering to the beneficiary meets the 
following statutory and regulatory requirements. 
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 11 84(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 01:cupation 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, l.heology, and the arts, and which requires the 
attainment of a bachelor's degree or hig,her 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: 
(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 anlong 
similar organizations or, in the allernative, 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 
WAC 04 003 54603 
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(4) The nature of the specific duties is so specialized and complex that knowledge 
required to perform the dut~er, 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 profered 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. 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 petitioner states that it is seeking the beneficiary's services as a services program director. Evidence of 
the beneficiary's duties includes: the Form 1-129; and the petitioner's January 26, 2004 response to the 
director's request for evidence. 
In response to the director's request for additional information, the petitioner stated that the beneficiary would 
be responsible for planning, organizing and coordinating programs with groups concerned with social 
problems of the community; promoting and coordinating activities of groups and individuals to meet 
identified needs; studying and assessing strengths and weaknesses of existing resources; interpreting needs, 
programs and services to groups and individual:; involved and providing assistance; preparing reports and 
disseminating information and maintaining corltacts with other organizations to exchange and update 
information on resources and services available; possibly assisting in budget preparation and presentation; 
working with elderly persons, physically or nlentally handicapped; possibly directing or coordinating 
activities of volunteers; and supervising case workers. The petitioner indicated that the various duties 
involved in the job are interrelated to each other and the specific percentage of time spent on each duty is 
difficult to determine. The petitioner indicated that the proffered position requires a bacheIor's degree. 
Additionally, the petitioner submitted an affidavit from the beneficiary's former employer attesting that the 
beneficiary has experience as a program coordinator. The petitioner referred to the Department of Labor's 
Dicrionaiy of Occupational Titles (DOT) occupation, service program coordinator, which indicated an SVP 
level of 8, in support of its assertion that the proffered position requires a bachelor's degree. 
The director issued a second request for information about the petitioner's business and for evidence that 
competitors with a similar number of employees and annual income, have in the past hired or are now using 
the services of a service program director and that a degree is required for closely related positions. In 
response, the petitioner provided quarterly wage statements, Form 990 Return for Organizations Exempt from 
Income Tax for tax year 2001 indicating program service revenue of $1,743,614 and salaries paid of 
$1,034,659, and an organizational chart. The petitioner indicated that the services program coordinator 
position "is the most important position directly under the director of ADHCC." 
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The director noted that the petitioner stated that it is customary for non-profit organizations involved in 
community health-related services to senior citizens to employ the services of a program coordinator. The 
director found that the petitioner did not provide any evidence for this assertion, thus he was unable to 
determine whether or not a bachelor's degree requirement is common to the industry in similar organizations. 
The director stated he could not conclude that there is a bona tide position that could be considered a specialty 
occupation. 
On appeal, the petitioner provides additional infc~rmation to support its con tention that the proffered position 
is a specialty occupation, including a letter from another adult day care facility and internet job postings and 
regulations governing adult day care centers in the State of California. The petitioner submits a copy of the 
beneficiary's certification as an Activities Coordinator. Additionally, the petitioner states that the beneficiary 
"plays a pivotal role in supervising program aides and nurses' aides, with whom she coordinates and oversees 
the implementation of the patient care instructions of the registered nurse, occupational therapist, physical 
therapist, speech therapist and social worker." 
Upon review of the record, the petitioner has iestablished none of the four criteria outlined in 8 C.F.R. 
214,2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO considers 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; 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 often 
considered by CIS when determining these criteria include: whether the Department of I,abor3s Occupation 
Outlook Handbook (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 firms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999)(quoting HirdBluker Corp. v. Sava, 812 F. 
Supp. 872, 1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as i1 specialty occupation, CIS looks beyond the title of the 
position and determines, from 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 baccalauteate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. 
Upon review of the record, the petitioner has failed to establish that the proffered position qualifies as a 
specialty occupation. The AAO routinely consults the Handbook for information about the duties and 
educational requirements of particular occupations. The duties of the proffered position are most similar to 
those of a paraprofessional, or activity director, as described in the Handbook under the occupation, 
recreational therapist. The Handbook describes the some of the duties of a recreational therapist as 
including: 
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In acute healthcare settings, such as hospitals and rehabilitation centers, recreational 
therapists treat and rehabilitate individuals with specific health conditions, usually in 
conjunction or collaboration with physicians, nurses, psychologists, social workers, and 
physical and occupational therapists. In long-term and residential care facilities, recreational 
therapists use leisure activities+specially structured group programs-to improve and 
maintain their clients' general health and well-being. They also may provide interventions to 
prevent the client Erom suffering further medical problems and complications related to 
illnesses and disabilities. 
The Handbook further describes the employment of recreational therapists as: 
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 rehabililation centers. In these programs, therapists use 
interventions to develop specific skills, while providing opportunities for exercise, mental 
stimulation, creativity, and fun. 
The described duties of the proffered position do not rise to the level of a recreational therapist. As described 
in the record, the incumbent in the proffered position is not implementing interventions to develop specific 
skills or treating and rehabilitating individuals with specific health conditions. The duties of the proffered 
position do not describe providing opportunities for exercise, mental stimulation, creativity, and fun. The 
duties of the proffered position are generally described as "'promoting and coordinating activities of groups 
and individuals to meet identified needs" and "planning, organizing and coordinating programs with groups 
concerned with social problems of the community." The proffered position resembles a paraprofessional 
working in the field of recreational therapy as described in the Hurzdbook. 
With respect to the educational qualifications required of paraprofessionals working in the field of 
recreational therapy, the Handbook states: 
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 quali@ing work experience may be sufficient for activity 
director positions in nursing homes. 
Consequently, there is insufficient evidence in the record to establish that a baccalaureate or higher degree or 
its equivalent in a specific specialty is the normal minimum requirement for entry into the services program 
coordinator position. 
To establish the second criterion - that a specific degree requirement is common to the industry in parallel 
positions among similar organizations - counsel relies on four internet job postings. This evidence fails to 
establish that a specific baccalaureate degree is common to the industry in parallel positions among similar 
organizations. One listing indicates that an associate's degree and three years experience would be sufficient 
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for the position. Additionally, the petitioner did not provide evidence that the advertising organizations are 
similar in nature and size to the petitioner. 
The petitioner submits a letter from another ad~llt day health care center. The program director from the 
Yasmin Adult Day Health Care Center stated that the center requires that the service program coordinator 
"have a bachelor's degree with an activity coordixlator certificate or 2 or more years of experience in a similar 
facility with the activity coordinator certificate." This letter indicates that a baccalaureate degree in a specif c 
degree is not the minimum requirement for the position. Consequently, the postings and letter fail to establish 
that there is a specific baccalaureate degree that is a common industry-wide requirement. 
No evidence is in the record that would show the proffered position is so complex or unique that it can be 
performed only by an individual with a degree. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 4 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 6 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. The petitioner refers to regulations of the 
State of California, Adult Day Care Facilities, 'I'itle 22, Division 6, Chapter 3. The petitioner highlighted 
several sections including one entitled Planned Activities. However, this section does not state that the person 
coordinating the activities or programs must have a baccalaureate degree in a specific specialty. This section 
indicates that the licensee should provide opportunities for planned activities, such as activities that require 
group interaction, daily living skills, and physical activities. The petitioner contends that the description of 
planned activities described in the regulation demonstrate the complexity of the job. The petitioner indicated 
that the beneficiary would supervise program aides and nurses' aides, with whom the beneficiary coordinates 
and oversees the implementation of the patient care instructions. 'To the extent they are described in the 
record, the duties of the position are not so specialized and complex that the knowledge required to perform 
them is usualIy associated with the attainment of a baccalaureate or higher degree. The duties parallel those 
in the Handbook for a paraprofessional in the fielcl of recreational therapy, an occupation that does not require 
a specific baccalaureate degree. The petitioner therefore fails to establish the fourth criterion. 
As related in the discussion above, the petitioner has failed to establish that the 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. 3 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.