dismissed H-1B Case: Healthcare

identifying data deleted to 
prevent clear1 y unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 182 5 1620 Office: CALIFORNIA SERVICE CENTER Date: JUN 2 9 2006 
- - 
IN RE: Petitioner: 
Beneficia fi 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 1 Ol(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. tj 1 10 1 (a)(] 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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 
WAC 04 182 5 1620 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a residential care facility for the elderly that seeks to extend its authorization to employ the 
beneficiary as a full-time management anabst. The petitioner endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to 5 IOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 lOI(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(I), 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. 
Pursuant to 8 C.F.R. 5 214.2(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 
8 C.F.R. $ 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 proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a full-time management analyst. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's June 1, 2004 letter in support of the petition; 
WAC 04 182 5 1620 
Page 3 
and the petitioner's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail: devising methods to inarease profit, manage expenses, and reduce 
department overhead; developing solutions to decrease overhead expenses by analyzing statistics such as 
annual revenues, advertising, promotions, and expenditures; conducting studies related to organizational 
changes, communications, information flow, and cost analysis; making recommendations for the 
implementation of new systems, procedures, and organizational changes; preparing reports for management; 
gathering and analyzing data through questionnaires and opinion polls, organizing findings, and preparing 
recommendations for appropriate changes; interviewing personnel and conducting on-site observations; 
preparing manuals and training workers in the use of new forms, reports, procedures, and equipment. 
Although not explicitly stated, it appears that the petitioner requires a baccalaureate degree or its equivalent in 
business administration with a major in management for the proffered position. 
The director found that the proffered position was not a specialty occupation because there is insufficient 
evidence that the position includes the advanced and complex duties of a bona fide management analyst. The 
director found further that the petitioner failed to establish any of the criteria found at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the director previously approved the petition for the same petitioner 
and the same beneficiary. Counsel states further that the petitioner has required all of its job applicants for the 
proffered position to hold a bachelor's degree in business administration or its equivalent. Counsel cites to a 
court decision to state that the petitioner's size bears no rational relationship to the need for a management 
analyst. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 9 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first 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; 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 Labor's 
Occupational Outlook Handbook (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 fms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999)(quoting Hird/Blaker Cop. v. Sava, 712 F. 
Supp. 1095,1102 (S.D.N.Y. 1989)). 
At the outset, the AAO notes inconsistencies regardjng thdnpetitioner's organizational hierarchy. The visa 
petition that was signed by the petitioner's administrator on June 8, 2004, reflects that the petitioner has 12 
employees and a gross annual income of $750,000. The petitioner's quarterly wage report for the quarter 
ended on June 30, 2004, however, reflects only five employees for the whole quarter. Further, the petitioner's 
2003 federal income tax return reflects no salaries and wages paid. The record contains no explanation for 
these inconsistencies. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
WAC 04 182 51620 
Page 4 
and attempts to explain or reconcile such inconsistencies, absent qompetent objective evidence pointing to 
where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. Although a review of the Handbook, 2006-2007 edition, finds that a management 
analyst may qualify as a specialty occupation, the AAO does not concur with counsel that the proffered 
position is a specialty occupation, based on the inconsistencies discussed above. Counsel's statement that the 
petitioner's size bears no rational relationship to the need for a management analyst, is noted. As discussed 
above, however, the petitioner's organizational hierarchy is unclear. In addition to the inconsistencies 
discussed above, the petitioner's administrator asserts in his June 1, 2004 letter that the beneficiary does not 
supervise any employees. However, the petitioner's organizational chart depicts the proffered position as a 
first-line supervisor. Again, doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
It is incumbent upon the petitioner to resolve a,ny inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence 
pointing to where the truth, in fact, lies, will not suffice. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Based on this conflicting information, the petitioner has failed to establish that it will employ the beneficiary as a 
full-time management analyst, and that the beneficiary will be coming to perform services in a specialty 
occupation, in accordance with Section 101 (a)(l 5)(H)(i)(b) of the Act, 8 U.S.C. § 101 (a)(lS)(H)(i)(b). 
Counsel asserts that CIS has already determined that the proffered position is a specialty occupation since CIS 
has approved another, similar petition in the past. This record of proceeding does not, however, contain all of 
the supporting evidence submitted to the service center in the prior case. In the absence of all of the 
corroborating evidence contained in that record of proceeding, the documents submitted by counsel are not 
sufficient to enable the AAO to determine whether the position offered in the prior case was similar to the 
position in the instant petition. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. $ 103.8(d). In 
making a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. 9 103.2@)(16)(ii). Although the AAO may attempt to hypothesize as to whether the 
prior case was similar to the proffered position or was approved in error, no such determination may be made 
without review of the original record in its entirety. If the prior petition was approved based on evidence that 
was substantially similar to the evidence contained in this record of proceeding, however, the approval of the 
prior petition would have been erroneous. CIS is not required to approve petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Cornrn. 1988). Neither CIS nor any other agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825 F.2d 1084, 1090 
(6th Cir. 1987), cert denied, 485 U.S. 1008 (1988). 
The AAO is never bound by a decision of a service center or district director. Louisiana Philharmonic 
Orchestra v. INS, 2000 WL 282785 (E.D. La.), afld 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(200 1). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
management analysts. There is no evidence, however, to show that the employers issuing those postings are 
similar to the petitioner, or that the advertised positions are parallel to the instant position. One of the 
WAC 04 182 5 1620 
Page 5 
advertisements is for a management analyst for one of the world's largest providers of management and 
technology consulting services to Global 2000 companies, and the other advertisement is for a senior financial 
analyst at Cedars Sinai Medical Center. The petitioner has not demonstrated that the proposed duties of the 
proffered position are as complex as the duties described in the advertised positions. Thus, the advertisements 
are not probative. 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to suppor;t the complexity or uniqueness of the proffered position. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 9-21$.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that the petitioner has required all of its job 
applicants for the proffered position to hold a bachelor's degree in business administration or its equivalent. 
The record, however, does not contain any evidence of the petitioner's past hiring practices and, therefore, the 
petitioner has not met its burden of proof in this regard. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Further, the 
petitioner's creation of a position with a perfunctory bachelor's degree requirement will not mask the fact that 
the position is not a specialty occupation. 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 or 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 ~ct.' To interpret the regulations any other way would lead to 
absurd results: if CIS were limited to reviewing a petitioner's self-imposed employment requirements, then 
any alien with a bachelor's degree could be brought into the United States to perform a menial, 
non-professional, or an otherwise non-specialty occupation, so long as the employer required all such 
employees to have baccalaureate or higher degrees. See id. at 388. 
Finally, the AAO turns to the criterion at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties 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. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. § 2 14.2(h)(4)(iii)(A)(4). 
I 
 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
WAC 04 182 51620 
Page 6 
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. f~ 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.