dismissed H-1B Case: Healthcare

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PUBLICCOl"'i
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: EAC 06 13752992 Office: VERMONT SERVICE CENTER Date: SEP 2 12007
INRE:
PETITION:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(15)(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, Chief
Administrative Appeals Office
EAC 0613752992
Page 2
DISCUSSION: The director of the Vermont Service Center denied the noninunigrant 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 an adult family home with a special designation for dementia, mental illness, and
developmental disabilities. It seeks to employ the beneficiary as a healthcare support worker. The
petitioner endeavors to employ the beneficiary in the nonimmigrant classification as a worker in a specialty
occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.c. § 1101(a)(15)(H)(i)(b).
The director denied the petition on May 19, 2006, concluding that the petitioner had failed to establish that
the proposed position qualifies for classification as a specialty occupation.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation,
submitted on April 3, 2006; (2) the director's request for additional evidence (RFE), dated April 14,2006;
(3) counsel's response, dated May 10, 2006, to the director's request for evidence and supporting
documentation; (4) the director's denial letter, dated May 19, 2006; and (5) the Form
I-290B, dated June 21, 2006, and supporting documentation. The AAO reviewed the record in its entirety
before reaching its decision.
The issue before the AAO is whether the petitioner's 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. § 1I 84(i)(1) defmes 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 occupation 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, theology, and the arts, and which
requires the attainment of a bachelor's degree or higher 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:
EAC 0613752992
Page 3
(1) A baccalaureate or higher degree or its equivalent is nonnally 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 perfonned 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 perfonn the duties is usually associated with the attainment of a
baccalaureate or higher degree.
Citizenship and Immigration Services (CIS) interprets the tenn "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 proffered 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. Cf Defensor v.
Meissner, 201 F. 3d 384 (5
th
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 healthcare support worker. In a letter
of support submitted in response to the director's request for evidence, the petitioner explained that the
adult homes are licensed to care for mentally and developmentally disabled persons, and the beneficiary's
proposed duties are as follows:
-Employee implements and documents treatment strategies as outlined in the physician
patient treatment plan; observes, records and reports resident's symptoms and reactions;
accompanies residents on visits to their doctors, psychiatrists, and psychologists, and
receives and helps implement instructions given by such medical professionals.
-Provides for resident safety and comfort through attention to general health and
assistance and guidance in cleanliness, grooming, rest activity and nourishment; helps
residents manage stress and anxiety problems that occur daily.
-Maintains an attractive and comfortable work and living environment.
-Adapts case load to each resident's individual needs and requirements.
-Encourages, supervises, coordinates, and participates in group or individual recreational,
social and related activities with residents diagnosed with dementia, mental illness, and
EAC 06 13752992
Page 4
developmental disabilities; helps such residents communicate in writing and/or speaking
to residents, staff, friends, relatives, and general public; prepares and implements daily,
weekly, monthly, quarterly activities for the residents; takes residents on outings (e.g.
McDonald's, mall, Mt. Rainer, healthcare provider), providing safety and comfort on
such trips; offers counseling and guidance in facing social obstacles; works towards
rehabilitation of residents, including being more independent in areas oftheir daily living.
-Assists in the maintenance of, the inventory of, and the security of resident belongings.
-Management of the unit's supplies.
-Promotes better understanding of facility's policies in contacts with the residents'
relatives.
-Interviews residents to obtain and compile personal data and social background; contacts
friends, relatives, public and private agencies to secure information on the resident's
background, personal history and social adaptability.
-Initiates and/or participates in the hiring, training and evaluation process of staff.
The petitioner also indicates that the minimum qualification to fill the position of healthcare support
worker is a bachelor's degree in social work, recreation, or related fields.
The director denied the petition on May 19,2006, concluding that the proffered position is not a specialty
occupation.
On appeal, counsel asserts that the U.S. Citizenship and Immigration Services (CIS) approved the H-IB
classification for the petitioner on two prior occasions for the same position. Counsel contends that the
officer examining the present petition should have reviewed the prior H-IB petition filed by the petitioner
on behalf of the beneficiary.
Upon review of the record, the petitioner has established none of the four criteria outlined in
8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, the AAO find that the proffered position is not a specialty
occupation.
On appeal, counsel for the petitioner noted that CIS approved other petitions that had been previously
filed on behalf of the beneficiary, and the director's decision indicated that he did not review the prior
approvals of the other nonimmigrant petitions. If the previous nonimmigrant petitions were approved
based on the duties that are contained in the current record, the approval would constitute material error
on the part of the director. The AAO is not required to approve applications or petitions where eligibility
has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g.
Matter o/Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to
suggest that CIS or any 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 prior approvals do not preclude CIS from denying an extension of the original visa based on
reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL
1240482 (5th Cir. 2004).
EAC 0613752992
Page 5
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd,
248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
The petitioner states that the duties of the position are most similar to those of a Social Worker, as
indicated in the Department of Labor's Occupational Outlook Handbook (the Handbook). The duties of
the position as listed by the petitioner, however, are not those of a social worker as listed in the
.Handbook. The primary duties of a social worker in the Handbook are to assess and treat individuals with
mental illness or substance abuse problems, and such services include individual and group therapy,
outreach, crisis intervention, social rehabilitation, and training in skills of everyday living. They also may
help plan for supportive services to ease patients' return to the community. In reviewing the petitioner's
description of the position, it does not appear that the beneficiary will participate in group therapy or
crisis intervention, but instead will focus more on the day-to-day maintenance and living needs of the
adults residents. As noted by the director, the position is for a healthcare support worker and not a social
worker.
In determining whether a proposed position qualifies as a 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 baccalaureate degree in a specific specialty, as the
minimum for entry into the occupation as required by the Act. The AAO routinely consults the Handbook
for its information about the duties and educational requirements of particular occupations. In reviewing
the 2006-2007 edition of the Handbook, the AAO finds that the duties and responsibilities of the proposed
position, while generally described, are encompassed within the Handbook's entry for nursing,
psychiatric and home health aides as discussed below.
In its discussion of the duties of nursing, psychiatric and home health aides, the Handbook states the
following:
Nursing and psychiatric aides help care for physically or mentally ill, injured, disabled, or
infirm individuals confined to hospitals, nursing care facilities, and mental health,
. settings. Home health aides have duties that are similar, but they work in patients' homes
or residential care facilities.
* * *
Home health aides help elderly, convalescent, or disabled persons live in their own
homes instead of in a health care facility. Under the direction of nursing or medical staff,
they provide health-related services, such as administering oral medications. (Personal
and borne care aides, who provide mainly housekeeping and routine personal care
services, are discussed elsewhere in the Handbook.) Like nursing aides, home health
aides may check patients' pulse rate, temperature, and respiration rate; help with simple
EAC 06 137 52992
Page 6
prescribed exercises; keep patients' rooms neat; and help patients to move from bed,
bathe, dress, and groom. Occasionally, they change nonsterile dressings, give massages
and alcohol rubs, or assist with braces and artificial limbs. Experienced home health aides
also may assist with medical equipment such as ventilators, which help patients breathe.
Most home health aides work with elderly or disabled persons who need more extensive
care than family or friends can provide. Some help discharged hospital patients who have
relatively short-term needs.
In home health agencies, a registered nurse, physical therapist, or social worker usually
assigns specific duties to imd supervises home health aides, who keep records of the
services they perform and record each patient's condition and progress. The aides report
changes in a patient's condition to the supervisor or case manager.
Psychiatric aides, also known as mental health assistants or psychiatric nursing
assistants, care for mentally impaired or emotionally disturbed individuals. They work
under a team that may include psychiatrists, psychologists, psychiatric nurses, social
workers, and therapists. In addition to helping patients to dress, bathe, groom themselves,
and eat, psychiatric aides socialize with them and lead them in educational and
recreational activities. Psychiatric aides may play games such as cards with the patients,
watch television with them, or participate in group activities, such as sports or field trips.
They observe patients and report any physical or behavioral signs that might be important
for the professional staff to know. They accompany patients to and from examinations
and treatment. Because they have such close contact with patients, psychiatric aides can
have a great deal of influence on their patients' outlook and treatment.
Therefore, based upon its reading of the Handbook, the AAO concludes that the duties of the proposed
position, as described by the petitioner in its letter of support and in its response to the director's request
for additional evidence, includes the duties of nursing, psychiatric and home health aides, described in the
Handbook. The majority of the duties proposed for the beneficiary are encompassed within this grouping.
Having made such a determination, the AAO next turns to the Handbook to determine whether these
occupations normally require applicants for employment to have the minimum of a baccalaureate or
higher degree, or its equivalent, in a specific field.
The Handbook states the following regarding the educational requirements for nursing, psychiatric and
home health aides:
In many cases, a high school diploma or equivalent is necessary for a job as a nursing or
psychiatric aide. However, a high school diploma generally is not required for jobs as
home health aides. Hospitals may require previous experience as a nursing aide or home
health aide. Nursing care facilities often hire inexperienced workers, who must complete
a minimum of 75 hours of mandatory training and pass a competency evaluation as part
of a State-approved training program within 4 months of their employment. Aides who
complete the program are known as certified nurse assistants (CNAs) and are placed on
EAC 0613752992
Page 7
the State registry of nursing aides. Some States also require psychiatric aides to complete
a formal training program. However, most psychiatric aides learn their skills on the job
from experienced workers.
Nursing and psychiatric aide training is offered in high schools, vocational-technical
centers, some nursing care facilities, and some community colleges. Courses cover body
mechanics, nutrition, anatomy and physiology, infection control, communication skills,
and resident rights. Personal care skills, such as how to help patients to bathe, eat, and
groom themselves, also are taught.
The Handbook's discussion of the education and training requirements for the occupation does not
support a finding that a bachelor's degree is normally required for entry into the occupation. It is clear
that a bachelor's degree, or its equivalent, is not the normal minimum requirement to fill this occupational
grouping.
For all of these reasons, the AAO finds that the position does not qualify as a specialty occupation on the
basis of a degree requirement under the first criterion set forth at 8 C.F.R. § 214.2(h)( 4)(iii)(A).
The AAO now turns to a consideration of wheth,erthe petitioner, unable to establish its proposed position
as a specialty occupation under the first criterion set forth at 8 C.F.R. § 214.2(h)(iii)(A), may qualify it
under one of the three remaining criteria: a degree requirement as the norm within the petitioner's
industry or the position is so complex or unique that it may be performed only by an individual with a
degree; the petitioner normally requires a degree or its equivalent for the position; or the duties of the
position are so specialized and complex that the knowledge required to perform them is usually associated
with a baccalaureate or higher degree.
The proposed position does not qualify as a specialty occupation under either prong of
8 C.F.R. § 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. The AAO has reviewed the seven job postings
submitted by counsel in response to the director's request for evidence. However, counsel has failed to
consider the specific requirements at 8 C.F.R. § 214.2(h)(4)(iiiXA)(2) for establishing a baccalaureate or
higher degree as an industry norm. To meet the burden of proof imposed by the regulatory language, a
petitioner must establish that its degree requirement exists in positions that are parallel to the proffered
position and found in organizations similar to the petitioner.
There is no information in the record to establish that the companies advertising their vacancies in the
submitted job postings are similar in size, scope, or scale of operations, business efforts, or expenditures
to the petitioner. Simply going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165.
According to the business licenses submitted by the petitioner, it runs two homes with the capacity to
hold a maximum of 11 adults. The petitioner did not provide evidence of the size and scale of operations
of the businesses listed in the job descriptions. Without documentary evidence to support the claim, the
------------------~--------------- ---~~--
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Page 8
assertions of counsel will not satisfy the petitioner's burden of proof. 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). The AAO has no basis to conclude that any of the job postings
submitted by counsel are from organizations that may be considered "similar" to the petitioner.
Moreover, the majority of the classified advertisements are for social workers or case management
positions, which do not parallel the proffered position. The job advertisements are for a day program
instructor, two social worker positions, case manager/RN consultant, and an aging and adult case
manager. The duties listed on the advertisements mainly consist of social work services, comprehensive
medical and psychological assessments, development and implementation of service plans and designing
of behavioral management plans, which are duties that are more advanced than the duties described for
the proffered position. The fact that the positions may share one or two similar duties with the
petitioner's proposed position does not establish that they are in fact parallel positions.
Accordingly, the proposed position does not qualify for classification as a specialty occupation under the
first prong of 8 c.P.R. § 214.2(h)(4)(iii)(A)(2).
The AAO also concludes that the record does not establish that the proposed position is a specialty
occupation under the second prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which requires a demonstration
that the position is so complex or unique that it can only be performed by an individual with a degree.
There has been no demonstration that the proposed position is more complex or unique than the general range
of duties performed by nursing, psychiatric and home health aides positions, which would normally not
require a degreed individual. The Handbook indicates that such positions generally do not normally require
at least a baccalaureate degree in a specific specialty; and the evidence of record does not establish the
proposed position as unique from or more complex than the general range of duties in such positions.
The proposed position does not qualify as a specialty occupation under 8 c.P.R. § 214.2(h)(4)(iii)(AX3),
which requires a showing that the petitioner nonnally requires a degree or its equivalent for the position. To
determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's past
employment practices, as well as the histories, including names and dates of employment, of those employees
with degrees who previously held the position, and copies of those employees' diplomas. Although the
director requested information of the other individuals who have been employed in this position and their
educational credentials, the petitioner did not submit this documentation. Again, going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
While the petitioner states that a degree is required, 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. Cf Defensor v. Meissner, 201 P. 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 Act. To interpret the regulations in ~ny other way would lead to absurd
EAC 0613752992
Page 9
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. The position as described in the
current record does not establish that the petitioner normally requires a baccalaureate degree in a
specialty, or that such degree is required.
Accordingly, the petitioner has not established the proffered position as a specialty occupation under the
third criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A).
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that a petitioner establish that the nature of
the specific duties of the position is so specialized and complex that the knowledge required to perform
them is usually associated with the attainment of a baccalaureate or higher degree.
The AAO refers to the Handbook excerpts quoted previously in this decision, which state that a
bachelor's degree in a specific specialty is not the normal minimum entry requirement for positions such
as the one proposed here. The duties of the proposed position do not appear more specialized and
complex than those of the corresponding positions as set forth in the Handbook. The AAO finds nothing
in the record to indicate that the beneficiary, in her role as a healthcare support worker for the petitioner
would face duties or challenges any more specialized and complex than those outlined in the Handbook
for nursing, psychiatric and home health aides. To the extent that they are depicted in the 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. Therefore, the evidence does not establish that the proposed position is a specialty occupation
under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
Beyond the decision of the director, the record does not establish that the beneficiary is qualified to
perform the services of the proposed position. The petitioner indicated that the minimum requirement to
fill the position is a bachelor's degree in social work, recreation or a related field. The petitioner
submitted an educational credentials evaluation indicating that the beneficiary was awarded a Bachelor of
Science in Education, which is the equivalent to a bachelor's degree from an accredited institution of
higher education in the United States. The credential evaluation also reviewed the beneficiary's work
experience in order to determine that the beneficiary has completed the equivalent of a bachelor's degree
in social work. A credentials evaluation service may evaluate academic credentials only.
See 8 C.F.R. § 214.2(h)(4)(iii)(D)(3). Thus, the record establishes that the beneficiary has only obtained
the equivalent of a U.S. bachelor's degree in education. For this additional reason, the petition may not
be approved.
Therefore, for the reasons related in the preceding discussion, 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. §§ 214.2(h)(4)(iii)(A)(l), (2), (3), and (4). Further, the record does not establish that the
beneficiary is qualified to perform the duties of a social worker. Accordingly, the AAO will not disturb
the director's denial of the petition.
EAC 06 137 52992
Page 10
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.