dismissed H-1B Case: Healthcare Services

U.S. Department of Homeland Security 
20 Massachusetts Avenue, PW, Rrn. A3042 
Washington, DC 20529 
identifying daEs QJeted to 
prevent elearly unwmmW 
fnv- ~~ privacy 
U.S. Citizenship 
and Immigration 
pUBLIC COPY 
FILE: WAC 03 023 5 15 13 Office: CALIFORNIA SERVICE CENTER Date: OCT 0 4 2~03 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 lOl(a)(lS)(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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 023 51513 
Page 2 
DISCUSSION: The service center director 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 a healthcare services and trading company that seeks to employ the beneficiary as a 
management analyst. The petitioner endeavors to classify the beneficiary as a nonimrnigrant 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. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner did not establish that the proffered position was a 
specialty occupation. On appeal, the petitioner submits a letter. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. !j 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. 
5 214.2(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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's requests for additional evidence; (3) the petitioner's responses to the director's requests; (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 03 023 51513 
Page 3 
The petitioner is seeking the beneficiary's services as a management analyst. Evidence of the bei~eficiary's 
duties includes: the 1-129 petition; the petitioner's October 28, 2002 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to the petition and the letter of support, 
the beneficiary would perform duties that entail: analyzing business procedures to design, write and 
implement programs to support accounts payable, accounts receivable, payroll, marketing strategies and client 
database; and developing business systems to improve business management efficiency. In response to the 
director's request for evidence, the following duties were added: analyzing and providing advice on the 
managerial method of the company; conducting studies to determine efficiency and effectiveness of 
management policies and programs; conducting assessments and proposing improvements to existing systems 
and operational procedures; planning the reorganization of the operation of the company; projecting., assisting 
and planning the future activities of the company; and supervising the company's accountant and marketing 
manager. The petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in 
business administration or commerce, with a major in management or accounting. 
There is a significant change in duties between the initial petition and the response to the director's request for 
evidence. CIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking 
at the time the petition is filed. See 8 C.F.R. 8 103.2(b)(12). Eligibility must be established at thle time of 
filing; a visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978). This appeal 
will be adjudicated based on the facts initially before the director. 
The director found that the proffered position was not a specialty occupation. The director found further that 
the petitioner failed to establish any of the criteria found at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states that the director had previously approved an identical petition for a beneficiary 
with the same qualifications as the beneficiary in the instant petition. The petitioner also states that its long- 
term expansion plans require having a management analyst on staff to guide the company through the project. 
The petitioner asserts that the requirement for a management analyst is not dependent on the size of the 
company or the nature of its business, but on the need of the company to fill the position to successfully 
operate its business. The petitioner states that the duties of the proffered position are more complex than 
those of a general managerial position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. $ 214.2 (h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the nonnal 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 
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 Department of Labor's 
Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether the inclustry'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." 
WAC 03 023 51513 
Page 4 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999)(quoting HiraYBlaker Corp. v. Sava, 712 F. 
Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. Although the proffered position is called a management analyst, the duties ofthe initial 
position description are more like those of computer programmers who "write, test, and maintain the detailed 
instructions, called programs, that computers must follow to perform their functions. They also conceive, design, 
and test logical structures for solving problems by computer." The duties of the position are what determine 
whether an occupation is a specialty occupation, not the title. No evidence in the Handbook indicates that a 
baccalaureate or higher degree, or its equivalent, is required for a computer programmer job. 
The petitioner did not submit any evidence regarding parallel positions in the petitioner's industry, nor does 
the record include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has., thus, not 
established the criteria set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. The petitioner provided a position announcement posted at its premises, 
which states that a bachelor's degree in business administration is required. The announcement does not list any 
duties. The petitioner also provided the name and a copy of the diploma of a person who it stated worked 
previously as a management analyst. There is no evidence that this person was employed by the petitioner, or any 
evidence regarding her position or duties. The petitioner has not established its normal hiring practices for the 
proffered position. 
Finally, the AAO turns to the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties 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 proffered position is a specialty 
occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The petitioner noted that CIS approved other similar petitions that had been previously filed. The director's 
decision does not indicate whether he reviewed the prior approvals of the other nonimrnigrant petition:;. If the 
previous nonimmigrant petitions were approved based on the same unsupported and contradictory 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 n'ot 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 (Cornm. 1988). It would be absurd to suggest that CIS or 
WAC 03 023 51513 
Page 5 
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). 
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 nonirnmigrant petition on 
behalf of the petitioner or 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). 
An H-1B alien is coming temporarily to the United States to perform services in a specialty occupation. 
Section lOl(a)( 1 S)(H)(i)(b) of the Act, 8 U.S.C. 5 lOl(a)(lS)(H)(i)(b). 8 C.F.R. 5 2 14.2(h)(l)(ii)(I3). In this 
case, the petitioner did not establish that the beneficiary would be coming to the United States to perform 
services in a specialty occupation. 
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.