dismissed H-1B Case: Healthcare

(b)(6)
DATE: JAN {} 6 20\5 
INRE: Petitioner: 
Beneficiary: 
OFF ICE: VERMONT SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service� 
Administrative Appeals Orfice (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)( l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 11 01(a)(l 5)(H) (i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
( 7 R 
-
Rosenberg 
L) Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is 
now on appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. 
The petition will be denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont 
Service Center on October 24, 2012. In the Form I-129 visa petition, the petitioner describes itself 
as a skilled nursing facility that was established in In order to employ the beneficiary in what 
it designates as a health educator position, the petitioner seeks to classify her as a nonimmigrant 
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 January 30, 2014, finding that the petitioner failed to establish 
that the proffered position qualifies as a specialty occupation in accordance with the applicable 
statutory and regulatory provisions. On appeal, the petitioner asserts that the director's basis for 
denial of the petition was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the director's request for evidence (RFE); (3) the response to the RFE; ( 4) the notice of decision; 
and (5) the Form I-290B and supporting materials. We reviewed the record in its entirety before 
issuing our decision. 
For the reasons that will be discussed below, we agree with the director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the appeal will be dismissed and the 
petition will be denied. 1 
II. SPECIALTY OCCUPATION 
A. The Law 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184( i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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(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 regulation at 8 C.F.R. § 214. 2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] 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 [(2)] 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, a proposed position 
must also meet one of the following criteria: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214. 2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (198 8) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F .R. 
§ 214. 2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214. 2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
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As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chertojf, 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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
B. The Proffered Position 
The petitioner stated in the Form I-129 that it seeks the beneficiary's services as a health educator on 
a full-time basis. In the Labor Condition Application (LCA) filed in support of the Form 1-129, the 
petitioner indicated that the proffered position is "Health Educator," and designated the position 
under the occupational category "Health Educators" - SOC (ONET/OES) code 21-1091. 2 
The record of proceeding also contains a job description for a "Nurse Educator" (rather than a 
"Health Educator"- the job title that was provided by the petitioner on the Form I-129 and LCA). 
No explanation for the variance in the job title was provided. We note that the job description is not 
on the petitioner's letterhead, and is not signed or endorsed by the petitioner. Thus, the source of the 
description cannot be identified. The duties of the "Nurse Educator" are described as follows: 
Conducts and analyzes the educational needs of the nursing staff as a basis to 
prioritize, design, coordinate/conduct educational programs or activities. Develops, 
implements, and evaluates education plans for the nursing staff Plans and 
coordinates orientation programs for all nursing staff to ensure competence to deliver 
safe care and preceptor relationship integration into the department as defined by 
regulatory agencies and/or professional standards. Assesses the learning needs of all 
nursing staff members. Provides a written orientation plan for each new employee. 
Schedules new staff with mentor, communicating learner's needs and goals. 
Maintains competency assessment records. Provides input to management for 
employee's introductory review. Provides clinical development and training while 
fostering a preceptor/mentor role; formulating and delivering educational programs; 
assessment and demonstration of clinical procedures. ( 40% ). 
Identifies gaps between performance standards and actual performance. Identifies 
2 The LCA Case Number is It was signed by 
petitioner reported this LCA Case Number on page 4 of the Form 1-129. 
on August 6, 2012. The 
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work environment factors (both internal and external) that may impact performance. 
Identifies performance evaluation criteria/processes. Identifies educational and/or 
training strategies that impact performance. (10%) 
Works closely with management and the nursing department to evaluate and 
implement appropriate staff competency assessment measures as required by 
accrediting and regulatory agencies. Develops appropriate monitoring tools that 
assess and document initial and on-going maintenance of clinical competencies. 
Supports and assists managers and/or preceptors in developing an effective process 
to implement these tools and serves as a mentor/coach to the managers and 
preceptors. Provides input on the assessment of initial competencies to managers 
and assist in work plan development. Obtains input from managers and front line 
staff for needed changes. Assists managers & employees in developing & revising 
nursing policies and procedures to meet evidenced based clinical or technological 
changes. Assists managers in the communication and implementation of 
new/revised policies & procedures to employees. Provides direct support to 
managers throughout remediation and performance management process, e.g. 
competency summary, remediation recommendations. Participate in competency 
related projects and committees. (20%) 
Develops, purchases and implements clinical competency based curriculum 
programs/products to improve knowledge, skills & competencies needed by 
employees to meet needs. Designs, performances, analyzes needs assessments to 
include content research, task analysis, managers' and employees' needs, work 
environment, learning styles & constraints. Designs evaluative tools that measure 
knowledge/skill improvement and on-the-job behavior. Implements and delivers 
curriculum & supporting processes to facilitate learning of employees. Evaluates 
curriculum & supporting processes to improve performance, support career 
development and meet organizational needs. (20%) 
Monitors progress and performance for quality assurance at regular intervals and as 
required to assure competence, e.g. shadowing, chart audits, return demonstration. 
Supports the development, implementation and sustainability of standard workflows. 
(10%) 
C. Analysis 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. 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 
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attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
When determining whether a position is a specialty occupation, we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, USCIS looks to the Form 
1-129 and the documents filed in support of the petition. It is only in this manner that the agency 
can determine the exact position offered, the location of employment, the proffered wage, et cetera. 
Pursuant to 8 C.F.R. § 214.2(h)(9)(i), the director has the responsibility to consider all of the 
evidence submitted by a petitioner and such other evidence that he or she may independently 
require to assist his or her adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) 
provides that " [a ]n H -1 B petition involving a specialty occupation shall be accompanied by 
[ d]ocumentation ... or any other required evidence sufficient to establish ... that the services the 
beneficiary is to perform are in a specialty occupation." 
That is, for H-1B approval, the petitioner must demonstrate a legitimate need for an employee exists 
and to substantiate that it has H-1B caliber work for the beneficiary for the period of employment 
requested in the petition. It is incumbent upon the petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty. 
Here, the record of proceeding contains inconsistent information about the nature of the proffered 
position, which undermines the petitioner's credibility with regard to the services the beneficiary 
will perform, as well as the actual nature and requirements of. the proffered position. When a 
petition includes numerous discrepancies, those inconsistencies will raise serious concerns about the 
veracity ofthe petitioner's assertions. 
For instance, in the Form 1-129 and LCA, the petitioner indicated that the beneficiary would be 
employed as a "Health Educator." However, the job description submitted with the H-1B petition is 
for a "Nurse Educator." Further, throughout the record, counsel refers to the position as a "Nurse 
Educator" and, in response to the RFE, asserted that "[t]he paper work originally submitted to 
[USCIS] shows that the beneficiary had previously worked for the petitioner as a health educator 
but is currently being offered the position of nurse educator. "3 Upon review, the record of 
3 We note that on the Form I- 29_ the neti6oner indicated in Part 2 that the most recent petition receipt 
number for the beneficiary was However, a search of USCIS records indicates that 
this receipt number is for a different beneficiary. 
The petitioner provided inconsistent information about dates of intended employment. In the Form 1-129, the 
petitioner stated that the dates of intended employment are from October I, 2012 to September 30, 2015. 
However, in the LCA, the period of intended employment is from January 12, 2013 to January 11, 2016. No 
explanation was provided. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
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proceeding does not support counsel's assertion. As noted above, the petitioner stated the job title 
for the proffered position is "Health Educator" and designated the proffered position under the 
occupational category "Health Educators" on the LCA. 4 
The record lacks sufficient consistent details regarding the nature and scope of the beneficiary's 
employment or substantive evidence regarding the work that the beneficiary would perform. 
Further, the petitioner has not provided documentation sufficiently concrete and informative to 
demonstrate that the proffered position requires the theoretical and practical application of a body of 
highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific 
specialty, or its equivalent, as a minimum for entry into the occupation. The information regarding 
the proffered position does not communicate: (1) the substantive nature and scope of the 
beneficiary's employment within the petitioner's business operations; (2) the actual work that the 
beneficiary would perform; (3) the complexity, uniqueness and/or specialization of the tasks; and/or 
(4) the correlation between that work and a need for a particular educational level of highly 
specialized knowledge in a specific specialty. 
Therefore, we are precluded from finding that the proffered position is a specialty occupation under 
any criterion at 8 C. F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 58 2, 591-
92 (BIA 198 8). 
4 On appeal, counsel asserts that it "reviewed the labor condition application that was submitted and it was 
for the position of nurse educator and not health educator." She further claims that "a copy of the document 
is attached for your review." However, we note that counsel has provided an entirely new LCA that was not 
reviously submitted with regard to this H-1B petition. The case number for the LCA submitted on appeal is 
which differs from the case number stated on the Form I-129. This new LCA indicates 
that the proffered position is for a "Nurse Educator," and is designated under the occupational category 
"Registered Nurses"- SOC (ONET/O ES) code 29-1 111. 
A petitioner (or counsel) may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Further, counsel's attempt to amend the petition on appeal is not properly before us. The regulations at 
8 C.F.R. § 214.2(h)(2)(i)(E) state in pertinent part: 
The petitioner shall file an amended or new petition, with fee, with the Service Center where the 
original petition was filed to reflect any material changes in the terms and conditions of 
employment or training or the alien's eligibility as specified in the original approved petition. 
The attempt to reconsider the original petition on appeal as a petition for a different job title and occupational 
classification is, therefore, rejected. 
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complexity of the specific duties, which is the focus of criterion 4. Thus, the petitioner has failed to 
satisfy any of the criteria under the applicable provisions at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied for this reason. 
III. BENEFICI ARY'S QUALIFICATIONS 
The director also found that the beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. Therefore, we need not and will not address the beneficiary's qualifications 
further. 
IV. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.12 
ORDER: The appeal is dismissed. 
12 
As the appeal will be dismissed for the reasons discussed above, we need not address the additional 
deficiencies that we observe in the record of proceeding that preclude approval of the petition.