dismissed H-1B Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC 12, 2024 In Re: 34903018 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
The Petitioner, a healthcare staffing company, seeks to temporarily employ the Beneficiary as a 
"registered nurse (emergency department)" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(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 foreign 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), deciding adversely on two independent bases. Here, we will evaluate the Director's 
conclusion that the record did not establish the offered position qualified as a specialty occupation. 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 I&N 
Dec. 369,375 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's Inc., 
26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal. 
After reviewing the entire record, we adopt and affirm the Director's ultimate determination relating to 
whether the offered position is a specialty occupation with the added comments below. See Matter of 
Burbano , 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) 
(noting the practice of adopting and affirming the decision below has been "universally accepted by every 
other circuit that has squarely confronted the issue"); Edwards v. US. Att'y Gen., 97 F.4th 725, 734 (11th 
Cir. 2024) (joining every other U.S. Circuit Court of Appeals in holding that appellate adjudicators may 
adopt and affirm the decision below as long as they give "individualized consideration" to the case). 
Within the appeal brief, the Petitioner claims a distinction between the offered position (registered 
nurse in an emergency department) and "routine staff nurses at a hospital." This appears to be in 
response to the Director's determination that under the first criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(J), the record did not demonstrate that registered nurses qualify as a specialty 
occupation. But the U.S. Department of Labor's (DOL) Occupational Information Network 
(O*NET)-a source of occupational information that was developed under the sponsorship of 
the DOL' s Employment and Training Administration-appears to directly refute the distinction the 
Petitioner alleges. The O*NET Details Report for Registered Nurses includes a sample of reported 
job titles and within those is "Emergency Department RN (Emergency Department Registered 
Nurse)." 
We note that USCIS policy has long described that "[r]egistered nurses generally do not qualify for 
H-lB classification." USCIS Policy Memorandum PM-602-0104, Adjudication ofH-JB Petitions for 
Nursing Occupations 2 (Feb. 18, 2015), http://www.uscis.gov/legal-resources/policy-memoranda. 
That same memorandum explains that advanced practice registered nurse positions that constitute "a 
level of nursing practice that utilizes extended and expanded skills, experience and knowledge in 
assessment, planning, implementation, diagnosis and evaluation of the care required. Positions that 
require nurses who are certified [advanced practice registered nurses] will generally be specialty 
occupations due to the advanced level of education and training required for certification." Id. at 4-5 . 
But the policy states that "having a degree is not, by itself, sufficient for the position to qualify for 
H-lB classification" and instead it will depend on whether a qualifying degree is required for the 
position and relevant state legislature and Boards of Nursing determining which positions in their 
jurisdiction will be certified as advanced practice registered nursing positions. Id. at 5. The policy 
offers a non-exhaustive list of advanced practice registered nurse occupations that may satisfy the 
specialty occupation requirements to include: certified nurse-midwife; certified clinical nurse 
specialist; certified nurse practitioner ; and certified registered nurse anesthetist. Notably, each of those 
occupations are included in DOL's Occupational Outlook Handbook (Handbook) or corresponding 
O*NET entries as typically requiring a master' s degree in an advanced practice nursing field. Bureau 
of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook , Nurse Anesthetists, Nurse 
Midwives, and Nurse Practitioners (Aug. 29, 2024), https://www.bls.gov/ooh/healthcare/nurse­
anesthetists-nurse-midwives-and-nurse-practi tioners .htm#tab-4. 
Despite the fact that the Petitioner attempts within the appeal brief to differentiate the position in the 
petition from the Registered Nurses Handbook profile that does not qualify as a specialty occupation, 
it remains that they submitted the required DOL ETA Form 9035 & 9035E, Labor Condition 
Application for Nonimmigrant Workers with this petition, where it classified the offered position 
under the occupational title "Registered Nurses," corresponding to the standard occupational 
classificational code 29-1141. That is the same standard occupational classificational code relating to 
the Handbook profile that does not qualify under the H-lB program. 
The distinction the Petitioner draws between registered nurses and critical care nurses seems as 
imperceptible as a line drawn in the water; momentarily visible on the surface, only to vanish without 
a trace. This difference is actually no distinction at all because the Handbook 's Registered Nurses 
profile includes critical care nurses as one type of registered nurses. In other words, the type of nursing 
position the Petitioner claims is so distinct from registered nurses is actually included in the 
Handbook 's profile that USCIS policy has long stated generally do not qualify for the H-lB program. 
And as our final comment on USCIS policy, the Petitioner indicates the memorandum states that 
"critical care Registered Nurses" are to be strongly considered to be specialty occupations. But this 
statement appears to cloud the situation before us and the Petitioner does not seem to fully represent 
the contents of the USCIS memorandum, as the policy document the organization references was 
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discussing advanced certifications available to nurses and not simply position or job titles. USCIS 
Policy Memorandum PM-602-0104, supra at 7 n.19. Stated differently, the Petitioner has not 
demonstrated that the memorandum supports their claims in the manner presented on appeal. 
Within the remainder of the appeal brief, the Petitioner effectively restates the positions it presented 
before the Director without explaining how the Director might have committed an error. We note the 
Petitioner did not argue in support of their claims relating to a portion of the second criterion (i.e., the 
degree requirement is common to the industry in parallel positions among similar organizations). We 
therefore, consider that issue abandoned within the remainder of these proceedings. Matter Khan, 
28 I&N Dec. 850, 852 n.4 (BIA 2024) (finding a topic is waived that was an issue before the lower 
adjudicative body but the filing party does not raise it on appeal). 
For the third criterion, the Petitioner only identifies one form of evidence and restates their previous 
claims without informing us of how the Director might have erred. And under the fourth criterion 
they only identify two forms of evidence and describe in one paragraph what they asserted before the 
Director, but again without explaining what aspects of the decision were incorrect and in what manner. 
The Director considered these arguments and evidence and explained why they fell short of satisfying 
the Petitioner's burden of proof. So it appears the Petitioner merely disagrees with the Director's 
determination under the third and fourth criteria. 
Simply disagreeing with the Director's decision without an indication of how they erred is inadequate. 
Here, the Petitioner does not identify what, if any, evidence the Director might have disregarded. The 
reason for filing an appeal is to provide an affected party with the means to remedy what they perceive 
as an erroneous conclusion oflaw or statement of fact within a decision in a previous proceeding. See 
8 C.F.R. § 103.3(a)(l)(v). It is insufficient to merely assert that the Director made an improper 
determination. Where a question of law is presented, supporting authority should be included, and 
where the dispute is on the facts, there should be a discussion of the particular details contested. Matter 
of Valencia, 19 I&N Dec. 354, 355 (BIA 1986). 
Because we find no error in the Director's analysis here, we consider the Petitioner's arguments-outside 
of the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J)-to be forfeited or waived. Matter of Garcia, 
28 I&N Dec. 693, 693 (BIA 2023) (finding arguments that do not meaningfully challenge an aspect of 
the underlying decision are deemed waived on appeal). 
And finally, because the above basis for the petition's denial is dispositive of this appeal, we will not 
address and we reserve the Petitioner's remaining appellate arguments relating to the cap exemption 
issue. Patel v. Garland, 596 U.S. 328, 332 (2022) (citing INS v. Bagamasbad, 429 U.S. 24, 25-26 
(1976) (finding agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision)); see also Matter of M-R-M-S-, 28 I&N Dec. 757, 764 (BIA 
2023) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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