dismissed H-1B Case: Healthcare Products

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
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PUBLIC COPY 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 240 50667 Office: CALIFORNIA SERVICE CENTER Date: APR 0 3 2006 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 l(a)( 1 S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
,2.3.22& z*, 
fi Robert P. Wiemann D' ctor 
0 
Administrative ~pp& Office 
WAC 04 240 50667 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant 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 importer and distributor of healthcare products that seeks to employ the beneficiary as 
a bilingual specialist/translator and to classify her as a nonimmigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 1 0 1 (a)( 1 5)(H)(i)(b). 
The director denied the petition on the basis that the proposed position is not a specialty occupation. On 
appeal, the petitioner submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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 
(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. § 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 bachelor's or higher degree, but one in a specific specialty that 
is directly related to the proposed position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's request for further evidence (RFE); (3) the petitioner's response to the RFE; (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. 
WAC 04 240 50667 
Page 3 
The petitioner is seeking the beneficiary's services as a bilingual specialist/translator. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the 
company support letter; and the petitioner's response to the RFE. The petitioner listed the following as 
the proposed duties with a break down of the percentage of time to be spent on each duty: 
1) 
 organizing material, such as product introduction, the company's balance sheet and business 
expansion plan, and revising company information such as the company's introduction, 
annual report, newsletter, and correspondence in both English and Japanese, according to set 
standards regarding order, dimension, massage speed, weight and function. (20%). 
conferring with the president and other sales and shipping personnel to define the key 
points of the translation and writing assignments mentioned above and the contents, such 
as current health care product market price, features, materials, and origins that need to 
be covered or promoted. 
determining the style of writing and specialized terminology in massage and health to be 
used that are appropriate for the assignment. 
2) revising, writing, editing and translating current company brochures, catalogs, and 
advertising materials, etc., with proper terminology in Japanese, providing clear information 
in a simple and easily understood manner (20%). 
utilizing the obtained specialized information in massage and specifications of the 
products to be presented to Japanese business partners or consumers. 
3) 
 providing quality translation and foreign documents preparation service as requested by 
business partners in Japan. (25%). 
providing assistance to the petitioner's business partners in preparing necessary official 
documents for the establishment of Japanese-based chain or joint venture to operate or 
invest overseas, including articles of incorporation, business license, organizational chart, 
product catalog, bank statement, invoice and so forth. 
documents requiring translation include but are not limited to official business letters of 
correspondence, business contracts or agreements, business plans, project proposals, etc. 
analyzing the information obtained to develop a detailed and easy understanding of 
articles or writing introductory, advertising, and soliciting materials using appropriate 
style and technical terminology. 
4) 
 developing contents for the corporate web site in Japanese. Cooperating with the web page 
composer and webmaster to create a website containing accurate and clear information, in a 
bilingual format, for the petitioner's service (20%). 
WAC 04 240 50667 
Page 4 
assisting in the construction of the petitioner's corporate website on the Internet. 
Cooperating with the web page composer to create a web site containing accurate and 
clear information on the petitioner's services and products. 
preparing articles and product descriptions in Japanese to be used on the website, making 
sure that all writing materials to be used on the website are accurate and information 
given is correct. 
ensuring the company materials written in Japanese mentioned above conform to 
Japanese reading habits and are consistent with Japanese culture, tradition, and systems. 
5) 
 Assisting in writing and technical translating of market reports on health care products, 
market analyses, market summaries, market trends, in Japanese newspapers, magazines, 
professional journals, programs in the field of health for Japanese radio and television in 
Southern California (1 5%) 
cooperating with senior salespeople and providing industry information for Japanese 
media including radio, television, newspaper and magazines in the Southern California 
area. Making analysis to current change of market trends, and introducing new products. 
6) Other assigned duties. 
The petitioner states that the beneficiary must have a bachelor's degree in Japanese and knowledge of the 
health industry. 
The director determined that the record lacked a reliable evidentiary basis to establish that the petitioner's 
proposed position was authentic because it is not common for businesses of any size to hire in-house 
translators, let alone a business of the petitioner's size. The director found that it was even less likely that 
the petitioner would need the services of the beneficiary since it already employed an in-house translator. 
The director further found that no evidence established that the proposed position is a specialty 
occupation. According to the director, the Department of Labor's Occupational Outlook Handbook (the 
Handbook) reveals that, while translator positions generally require bachelor's level training, they do not 
require a degree in a specific specialty. The director found that the petitioner failed to establish any of the 
specialty occupation criteria. 
On appeal, the petitioner states that the beneficiary will be the only in-house translator working for the 
petitioner because its other translator no longer works there. The petitioner asserts that the position is a 
combination technical writer/localization translator and submits samples of translated work, a company 
profile, a customer list, and other evidence of doing business. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
9 214.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(I) and (2): a bachelor's 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 
WAC 04 240 50667 
Page 5 
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 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 
firms "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 Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
To determine whether or not a 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 bachelor's 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. Based on the petitioner's job description and a thorough review 
of the Handbook, the AAO finds that the duties of the proposed position most resemble those of a 
translator. According to the Handbook, translators convert written materials, which may vary in length, 
writing style, and subject matter, from one language into another. Translators also might do additional 
research on the subject matter if they are unclear about anything in the text. Specifically the Handbook 
states the following about the duties employers assign to translators: 
Translating involves more than replacing a word with its equivalent in another language; 
sentences and ideas must be manipulated to flow with the same coherence as those in the 
source document so that the translation reads as though it originated in the target 
language. Translators also must bear in mind any cultural references that may need to be 
explained to the intended audience, such as colloquialisms, slang, and other expressions 
that do not translate literally. Some subjects may be more difficult than others to 
translate because words or passages may have multiple meanings that make several 
translations possible. Not surprisingly, translated work often goes through multiple 
revisions before final text is submitted. 
Most of the proposed duties, such as "organizing material in English and Japanese," "revising, writing, 
editing and translating current company brochures, catalogs, and advertising materials" and "providing 
clear information in a simple and easily understood manner," are common translator duties. The other 
duties appear to be incidental editorial duties related to the translation position, such as "cooperating with 
the web page composer and webmaster to create a website containing accurate and clear information, in a 
bilingual format," and "assisting in writing and technical translating of market reports on health care 
products." 
The AAO disagrees with the petitioner's assertion that the proposed position is a combination of duties of 
a localization translator and a technical writer. The Handbook discusses the occupation of localization 
translators, which constitutes a relatively recent and rapidly expanding specialty. The Handbook states: 
Localization involves the complete adaptation of a product for use in a different language 
and culture. At its earlier stages, this work dealt primarily with software localization, but 
the specialty has expanded to include the adaptation of Internet sites and products in 
manufacturing and other business sectors. 
WAC 04 240 50667 
Page 6 
Translators working in localization need a solid grasp of the languages to be translated, a 
thorough understanding of technical concepts and vocabulary, and a high degree of 
knowledge about the intended target audience or users of the product. The goal of these 
specialists is for the product to appear as if it were originally manufactured in the country 
where it will be sold and supported. Because software often is involved, it is not 
uncommon for people who work in this area of translation to have a strong background in 
computer science or computer-related work experience. 
Given that the beneficiary will translate many different types of documents, including product 
descriptions, market reports, newspapers, and magazines, and that the proposed position does not require 
a master's degree, it differs from a localization translator as that occupation is described in the Handbook. 
The proposed duties do not include the duties performed by technical writers, as described in the 
Handbook. According to the Handbook, technical writers prepare operating and maintenance manuals, 
catalogs, parts lists, assembly instructions, sales promotion materials, and project proposals. They often 
work with engineers on technical subject matters to prepare written interpretations of engineering and 
design specifications and other information for a general readership. Therefore, the AAO finds that the 
duties are those of a translator and that they do not combine the duties of a translator and a technical 
writer. 
Thus, the petitioner has failed to establish that the position is one that qualifies as a specialty occupation 
under the first criterion at 8 C.F.R. 214.2(h)(4)(iii)(A) - a bachelor's or higher degree or its equivalent, in 
a specific field of study is normally the minimum requirement for entry into the particular position. 
There is no evidence in the record to establish the first alternative prong of the second criterion - that a 
specific degree requirement is common to the industry in parallel positions among similar organizations. 
The petitioner asserts that the AAO has already determined that a bilingual specialist is a specialty 
occupation and refers to a 1994 AAO decision and submits copies of several petitions for similar 
positions that were approved. If the previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the approval would constitute material and 
gross 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 of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). 
Furthermore, each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. § 
103.8(d). 
The petitioner has not satisfied the second alternative prong of 8 C.F.R. 
 214.2(h)(4)(iii)(A)(2) as no 
evidence shows the proposed position is so complex or unique that it can be performed only by an 
individual with a degree. The Handbook discloses that translation jobs do not require individuals with 
specific bachelor's degrees to perform them. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 
 214.2(h)(4)(iii)(A) - that 
the petitioner normally requires a degree or its equivalent for the position. 
 To determine whether a 
petitioner has established this criterion, the AAO generally reviews the petitioner's past employment 
practices, including the histories of those employees who previously held the position, as well as their 
WAC 04 240 50667 
Page 7 
names, dates of employment, and copies of their diplomas. In the instant case, the petitioner asserts that it 
established this criterion by listing a former employee, employed as a translator, on its organizational 
chart. The petitioner, however, did not submit evidence to establish that this individual held a bachelor's 
degree in translation or a related field or that she performed duties that rose to the level of a specialty 
occupation. 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. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Further, one 
hiring is not sufficient to establish a history of exclusively recruiting and hiring only individuals with at 
least a bachelor's degree in a specific specialty. Also, the evidence of record does not establish that the 
petitioner's requiring a specialty degree is necessitated by a level of highly specialized knowledge that 
must be theoretically and practically applied to perform the job. See Defensor v. Meissner, 201 F. 3d 384 
(5th Cir. 2000). 
The fourth criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of 
the specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a bachelor's or higher degree. The record contains various documents 
submitted to support the assertion that the material to be translated is specialized and complex. It is not 
possible to ascertain which are the original Japanese documents and which are the English translations. 
Because the petitioner failed to submit certified translations of the documents, the AAO cannot determine 
whether the evidence supports the petitioner's claims. See 8 C.F.R. 8 103.2(b)(3). Accordingly, the 
evidence is not probative and will not be accorded any weight in this proceeding. Although some 
scientific and medical terms appear in the documents, the terminology is not so specialized and complex 
as to require knowledge that is usually associated with the attainment of a bachelor's or higher degree in a 
specific field that relates to the particular document. For example, a bachelor's or master's degree in 
chemistry or a related field is not required in order to properly translate the product information for 
"Rejuvenal." The Handbook states that translators sometimes do additional research on the subject matter 
if they are unclear about anything in the text. Based on the evidence of record, a bachelor's degree in any 
field and proficiency in English and Japanese would be sufficient to perform the duties of the proposed 
position. 
As related in the discussion above, the petitioner has failed to establish that the proposed 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. 
8 136 1. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.