dismissed H-1B Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 10, 2025 In Re: 34887550 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to 
file a petition with U.S. Citizenship and Immigration Services (USCIS) to temporarily employ a 
qualified nonimmigrant worker in a position that requires both (a) the theoretical and practical 
application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher 
degree in the specific specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish exemption from the annual numerical limitation on H-lB visas (H-lB cap) or that the 
proffered position is for a specialty occupation. The matter is now before us on appeal pursuant to 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines 
the term "specialty occupation" as an occupation that requires the "theoretical and practical application 
of a body of highly specialized knowledge, and 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 regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. 
In addition, 8 C.F .R. § 214.2(h)( 4 )(iii)(A) provides that the proffered position must meet one of four 
criteria to qualify as a specialty occupation position: (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. 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory 
definitions of a specialty occupation under section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
We construe the term "degree" to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertoff, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"). Lastly, 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(I) states that an H-lB classification may be granted to a foreign national who "will 
perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether a beneficiary will be employed in a specialty occupation, we look 
to the record to ascertain the services the beneficiary will perform and whether such services require 
the theoretical and practical application of a body of highly specialized knowledge attained through at 
least a bachelor's degree or higher in a specific specialty or its equivalent. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
The Petitioner, a healthcare staffing company, intends to employ the Beneficiary in the position of 
"registered nurse (intensive care unit)" and states that this position requires a bachelor's degree or 
higher in nursing. The Petitioner states that the Beneficiary will be placed for employment at the 
_____________________ Georgia. Additionally, the Petitioner 
contends that the petition is exempt from the H-lB cap pursuant to 8 C.F.R § 214.2(h)(8)(iii)(F)(4) 
because! is a qualified cap exempt institution. 
The Director denied the petition, concluding that the Petitioner did not establish that the petition is 
exempt from the H-1 B cap or that the proffered position is for a specialty occupation. Because, as we 
discuss below, the Petitioner has not established that the proffered position is for a specialty 
occupation, we need not reach the question of whether the Petitioner established eligibility for 
exemption from the H-lB cap, and we reserve our opinion regarding that issue. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (holding that agencies are not required to make 
"purely advisory findings" on issues that are unnecessary to the ultimate decision). 
Regarding the question of whether the position qualifies as a specialty occupation, on appeal the 
Petitioner primarily repeats claims previously presented to the Director. As to the first criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), the Petitioner acknowledges that the normal, minimum educational 
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requirement for the occupation of registered nurse is an associate's degree and that the occupation is 
generally not a specialty occupation. However, the Petitioner contends that this position does qualify 
as a specialty occupation under this criterion because it is a position for a registered nurse in the 
intensive care unit. The Petitioner repeats the claim, previously presented to the Director, that the 
evidence establishes that the position is distinct from an entry level staff nurse position including the 
letter from I I President and Chief Executive Officer (CEO) of which states that the 
hospital believes that a bachelor's degree is required for the position. The Petitioner contends that, 
although there are exceptions when less than a bachelor's degree is accepted for the position, the 
evidence nevertheless is sufficient to establish that a bachelor's degree is the "normal" requirement. 
However, upon review of the record, we agree with the Director that the evidence does not establish 
that the position is a specialty occupation within 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). As noted by the 
Director, the Petitioner's claim that the position should be evaluated as a "critical care nurse," under 
standard occupational category (SOC) code 29-1141.03, is not persuasive because this is a separate 
occupational category from the "registered nurse" category that the Petitioner selected on its certified 
labor condition application (LCA). The Petitioner does not address on appeal why it selected the SOC 
code 29-1141.00 for "registered nurses" on its LCA instead of the SOC code for "critical care nurses," 
although the Director noted this discrepancy in their decision. Regarding the letter from the President 
and CEO of I I while it does state the position that a bachelor's degree is required, it also 
acknowledges that individuals with less than a bachelor's degree have been hired to work in positions 
that are similar to the proffered position. Although the Petitioner seeks to differentiate its proffered 
position from that of a "staff nurse," which it acknowledges is not a specialty occupation, the evidence 
is not sufficient to establish that this position is distinct such that a bachelor's degree would normally 
be the minimum requirement for the proffered position. As such, we conclude that the evidence does 
not establish that the proffered position 1s a specialty occupation within 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
The Petitioner next contends on appeal that it has established the third criterion-that it normally 
requires a degree or its equivalent for the position. In support of this claim, the Petitioner refers again 
to the letter from the President and CEO ofl I The Petitioner also refers to a roster of employees 
in similar positions at the hospital and to a news article about the shortage of nurses in the state of 
Georgia. First, we note that the Petitioner has not provided evidence to establish its own hiring 
practices in support of this criterion, but rather has provided evidence related to the hiring practices of 
I Moreover, the evidence does not sufficiently establish thatl Inormally requires a degree 
or its equivalent for this position. For example, the employee roster appears to show that there are 
individuals in this or similar positions with only an associate' s degree. Moreover, the roster is not 
sufficient to establish what the educational requirement was for each of these positions at the time of 
hire. Additionally, as stated above, the letter from the President and CEO of I I itself 
acknowledges that the hospital has hired individuals for this position with less than a bachelor's 
degree. Finally, we note that the Director stated in the decision that publicly available I ljob 
postings for similar critical care nursing positions indicate that a bachelor's degree is preferred but not 
required, and that this weighs against a finding that the employer normally requires a degree. On 
appeal, the Petitioner does not acknowledge or overcome this finding by the Director. As such, we 
conclude, the evidence in the record is not sufficient to demonstrate that the Petitioner normally 
requires a bachelor's degree or its equivalent for the position. 
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Finally, the Petitioner asserts that it has established criterion four-that the nature of the specific duties 
are so specialized and complex that the knowledge required to perform the duties is usually associated 
with the attainment of a bachelor's degree-and the second part of criterion two-that its position is 
so complex or unique that it can only be performed by an individual with a bachelor's or higher degree. 
Specifically, the Petitioner asserts that the letter from I I and the expert opinion letter establish 
this criterion. However, although both letters make the assertion that this particular position is 
sufficiently complex as to require a bachelor's degree, the assertion is made without sufficient support. 
Neither the President and CEO of I I nor the expert opinion writer describe with specificity how 
this position is more complex or specialized than that of other registered nurses, for example, by citing 
to specific duties that are required of this position that are more complex or specialized than that of a 
registered nurse. The opinion writer describes how a bachelor's degree in nursing is useful in the 
occupation, for example stating that nurses with bachelor's degrees are "well-equipped to make sound 
clinical judgments and provide high-quality patient care in complex healthcare environments." But 
the question is not whether a bachelor's degree provides relevant education or whether it is helpful for 
the occupation; rather, the Petitioner must establish that a bachelor's or higher degree in the specialty 
is a minimum prerequisite for the position. For the reasons discussed above, the evidence in the record 
is not sufficient to establish this. The Petitioner's assertion, without sufficient explanation or 
specificity, that the duties are "far more complex than those of an entry level nurse" is not sufficient 
to establish the complex or specialized nature of the position. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies for classification as a specialty occupation. 
Moreover, the record does not establish that the Petitioner has satisfied that the position meets the 
statutory and regulatory definitions of a specialty occupation. Because this conclusion is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the question of whether Petitioner 
has established exemption from the H-lB cap. See INSv. Bagamasbad, 429 U.S. at 25. 
III. CONCLUSION 
As stated above, we conclude that the evidence of record does not establish, more likely than not, that 
the proffered position qualifies for classification as a specialty occupation. Accordingly, the appeal 
will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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