dismissed H-1B Case: Human Resources

pWL1C COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 04 122 5 1943 Office: TEXAS SERVICE CENTER Date: MAY 0 4 2006 
IN RE: 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101 (a)( lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 
'i 
SRC 04 122 51943 
Page 2 
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. 
The petitioner is a provider of personnel relocation services. It seeks to employ the beneficiary as a 
human resources representative and to extend his classification as a nonirnmigrant 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 on the ground that the proffered position does not qualify as a specialty 
occupation. 
Section 214(i)(l) of 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. 
As provided in 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: 
(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. 
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: (I) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of 
decision; and (5) Fonn I-290B, an appeal brief, and supporting materials. The AAO reviewed the record 
in its entirety before issuing its decision. 
SRC 04 122 5 1943 
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In its initial submission, including Form 1-129 and an accompanying letter, the petitioner described itself 
as a business that specializes in relocating client companies' personnel and equipment to Brazil. The 
petitioner indicated that it was established in 2002, had three employees, and projected gross annual 
income of approximately $690,000 by 2005. To facilitate its growth and manage the company's 
marketing and liaison functions, the petitioner stated that it requires the services of a human resources 
representative. The job was described as follows: 
[The beneficiary] will liaise with established clients that are interested in moving 
personnel and equipment into Brazil and actively seek new clients at the corporate level. 
The position requires knowledge of Brazilian legislation and procedures and fluency in 
Portuguese. [The beneficiary] will compile and maintain records of clients' employees' ' 
information, such as personal data, compensation, and benefits to assist with employee 
relocation. 
The beneficiary is qualified to perform the services of the proffered position, the petitioner declared, 
based on twelve years of progressively responsible work experience for Brazilian companies in business 
administration, human resources management, and related areas, which is equivalent to a bachelor of 
science degree in human resources management, according to an evaluation by a professor of economics 
and finance at Baruch eopge, City university of New York. The record indicates that the beneficiary 
received H-1B classification in November 2002 pursuant to a petition filed by 
working for that company in,Hoyston, Texas, at the time the instant petition 
9 
In her decision the director referred to the Department of Labor (D0L)'s Occupational Outlook 
Handbook (Handbook), noted that there was no defined standard for entry into the field of human 
resources, and based on that information determined that a baccalaureate degree in a specific specialty is 
not the normal minimum requirement for entry into the proffered position. The petitioner failed to 
establish that a baccalaureate degree is required by similar organizations in the industry, the director 
stated, or that the duties of the proffered position are so complex or unique that they can only be 
performed by an individual with a degree. The director concluded that the proffered position does not 
meet any of the criteria of a specialty occupation enumerated in 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
On appeal counsel asserts that the proffered position qualifies as a specialty occupation under three of the 
four criteria enumerated in 8 C.F.R. 3 214.2(h)(4)(iii)(A). Counsel contends that information in the DOL 
Handbook confirms that a bachelor's degree is required for human resources positions, thereby qualifying 
the proffered position as a specialty occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(l). As evidence that 
a bachelor's degree is the common industry standard for human resources representatives, thereby 
qualifying the proffered position as a specialty occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2), 
counsel submits two letters (already in the record) from other companies who employ a human resources 
representative and approximately 60 internet job announcements for human resources representatives or 
related positions. As evidence that the duties of the proffered position are so specialized and complex 
that baccalaureate level knowledge is required to perform them, thereby qualifying the position as a 
specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), counsel submits a more detailed job 
description from the petitioner and resubmits an evaluation of the educational requirements of the 
position from a professor of marketing at Pace University's school of business. The petitioner's new job 
description of the proffered position, which it calls a human resources assistant, reads as follows: 
I 
SRC 04 122 5 1943 
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The position of human resources assistant is a highly specialized position . . . [that] will 
be working within a highly complex niche of the industry, namely expatriate services . . . . 
This position requires a full range of knowledge of human resources issues associated 
with the transfer of executives, high-level managers and specially skilled employees 
abroad. Specifically, the candidate will guide the company in the selection of qualified 
employees for assignments abroad. The candidate must ensure that the employee is 
qualified for a visa to the foreign country and must make a determination as the 
company's and the employee's tax, payroll, customs liabilities or special issues. As such, 
the candidate must have the ability to understand, interpret and apply foreign government 
regulations in order to qualify the appropriate employees and minimize the company's 
costs and liabilities. 
For example, when transferring an employee to Brazil, the human resources assistant 
must assure the company that its employees and payroll are consistent with the three- 
fifths rule . . . [which] requires . . . that at least three-fifths of the company's workforce is 
Brazilian . . . [and] . . . that no more than three-fifths of the company's payroll is paid to 
foreign workers. The definition of foreign workers depends on the type of work 
authorization granted, so the human resources assistant must also plan for and predict the 
types of visas necessary to assure compliance with this rule. 
Another example is when transferring an employee to a country that has a bilateral 
"Social Security" treaty with the United States, such as most Western European 
countries. These treaties allow for a foreign employee to obtain a certificate of coverage 
from the United States government in order to avoid tax liabilities in the foreign country. 
The ability to obtain and qualify for such certificates depends on a number of factors, 
such as whether the employee has been on the U.S. payroll, whether worldwide income 
was reportable and necessary taxes were paid. As such, the human resources assistant is 
charged with reviewing complex payroll and tax documents and with planning to assure 
that employees will remain eligible for such certificates. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Coy. v. Suva, 
712 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
As indicated in the Handbook, 2006-07 edition, human resources managers and specialists comprise a 
broad occupational category and the duties of individual positions vary considerably depending on the 
nature of the company and the scale of its operations. Of particular relevance for the proffered position in 
this case, the Handbook states that: "In a small organization, a human resources generalist may handle all 
SRC 04 122 51943 
Page 5 
aspects of human resources work, and thus require an extensive range of knowledge." The occupational 
sub-categories closest to the proffered position are "employment, recruitment, and placement specialists," 
and the Handbook also recognizes, as an emerging specialty, "international human resources managers, 
who handle human resources issues related to a company's foreign operations." 
Reflecting the broad range of positions within the occupation, educational requirements for human 
resources specialists also vary. As explained in the Handbook, 2006-07 edition: 
The educational backgrounds of human resources . . . managers and specialists vary 
considerably because of the diversity of duties and levels of responsibility. In filling 
entry-level jobs, many employers seek college graduates who have majored in human 
resources, personnel administration, or industrial and labor relations. Other employers 
look for college graduates with a technical or business background or a well-rounded 
liberal arts education. 
.... 
Because an interdisciplinary background is appropriate in this field, a combination of 
courses in the social sciences, business, and behavioral sciences is useful . . . . 
.... 
For many specialized jobs in the human resources field, previous experience is an asset.. . 
The field offers clerical workers opportunities for advancement to professional positions. 
Responsible positions occasionally are filled by experienced individuals from other 
fields, including business, government, education, social services administration, and the 
military. 
As indicated in the Handbook, different employers look for different educational credentials in hiring 
entry-level human resources managers and specialists. In addition, relevant work experience is highly 
valued and can sometimes substitute for formal education. Based on the foregoing information, the AAO 
determines that a baccalaureate or higher degree in a specific specialty is not the normal minimum 
requirement for entry into a position as human resources representative (or human resources assistant). 
Thus, the proffered position does not meet the fust alternative criterion of a specialty occupation at 
8 C.F.R. 3 214.2(h)(4)(iii)(A)(I). 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(Z), the 
record includes identically-worded letters from the international human resources managers of two 
companies in Mesquite, Texas - Diamond Offshore and GlobalSantaFe Corporation - who state the 
following: 
Our company's human resources department hires representatives to handle the 
international transfer of key employees. Given the skills required and the importance of 
the employees being transferred, we always hire representatives with no less than a 
bachelor's degree in human resources or a closely related field. 
Both companies have human resources departments and thus appear to be considerably larger than the 
petitioner's three-employee operation. Furthermore, neither company appears to be in the petitioner's 
line of business - i.e., an employee relocation service. In addition, neither letter identifies any specific 
individuals the company has hired as international human resources representatives, or provides evidence 
SRC 04 122 51943 
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of their baccalaureate degrees. 
 Thus, the industry letters in the record fail to establish that the 
requirement of a baccalaureate or higher degree in a specific specialty is common to the petitioner's 
industry in parallel positions among similar organizations, as required for the proffered position to qualify 
as a specialty occupation under the first prong of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2). With respect to the 
approximately 60 internet job announcements for human resources representatives or similar positions, 
most if not all of the companies are considerably larger than the petitioner and most of the companies are 
in different lines of business from the petitioner. Moreover, the advertisements are far from uniform as to 
their educational requirements. While some specify that a bachelor's degree in human resources or a 
related specialty is required, others indicate that such a degree is only preferred, and some only state that a 
bachelor's degree is required without indicating any area of specialty. Like the industry letters, therefore, 
the internet job announcements fail to establish that the requirement of a baccalaureate or higher degree in 
a specific specialty is common to the petitioner's industry in parallel positions among similar 
organizations, as required for the proffered position to qualify as a specialty occupation under the first 
prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
Nor does the record show that the proffered position in this case is so complex or unique that it can only 
be performed by an individual with a baccalaureate degree in a specific specialty, as required for it to 
qualify as a specialty occupation under the second prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
As indicated in the record, the position of human resources specialist was newly created at the time of 
filing. Since there is no hiring history for the job, the petitioner cannot establish that it normally requires 
a specialty degree or its equivalent for the position, as required for the position to meet the third 
alternative criterion of a specialty occupation at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3). 
Finally, the record does not establish that the duties of the human resources specialist are so specialized 
and complex that the knowledge required to perform them is usually associated with a baccalaureate or 
higher degree in a specific specialty, as required for the position to meet the fourth alternative criterion of 
a specialty occupation at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4). Though the petitioner claims that knowledge 
of Brazilian employment law and the Portuguese language is essential for the job, the record does not 
demonstrate that such knowledge is usually associated with a baccalaureate or higher degree in a specific 
specialty. Counsel cites the evaluation of the proffered position by James S. Gould, a professor of 
marketing at Pace University's Lubin School of Business, which was originally submitted in response to 
the RFE. Professor Lubin finds that the position "involves[s] the application of intensive analytic 
concepts and practical techniques of human resources administration and related fields" which requires a 
bachelor's degree in human resources administration or a related field, or its functional equivalent in 
professional experience. "Generalized knowledge of human resources administration alone," Professor 
Gould declares, "is not sufficient for a human resources representative to successfully meet the functional 
position requirements." According to Professor Lubin, "[tlhe duties required for the instant position 
necessitate that an individual be familiar with theoretical and academic concepts in human resources 
administration, and related areas" that are typically taught in baccalaureate degree programs or learned 
through on-the-job training and work in the field. The author of the evaluation is a professor of marketing 
at a business school, who states that he teaches courses in marketing, management, finance, accounting, 
and business administration. The record does not show that he has expertise in the field of human 
resources. 
SRC 04 122 5 1943 
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CIS may, in its discretion, use as advisory opinions statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. When an opinion does not 
accord with other information or is in any way questionable, however, CIS is not required to accept or 
may give less weight to that evidence. See Matter of Caron International, Inc., 19 I&N Dec. 791, 795 
(Cornm. 1988). The record shows that the beneficiary's knowledge of Brazilian employment law - which 
Professor Gould deems sufficient for the proffered position - was acquired exclusively through prior 
work experience in the human resources field and was performed without a baccalaureate level education 
or equivalent knowledge. The record does not demonstrate that the employment law-related duties of the 
proffered position are so specialized and complex that they require baccalaureate level knowledge in a 
specific specialty. As for the beneficiary's knowledge of the Portuguese language, that was acquired by 
growing up in Brazil as a native speaker. It is not a body of specialized knowledge associated with a 
baccalaureate or higher degree. The AAO concludes that the evaluation from Professor Gould is not 
persuasive evidence that baccalaureate level knowledge of human resources administration or a related 
specialty is required to perform the duties of the proffered position. Based on the evidence of record, the 
AAO determines that the duties could be performed by an experienced individual without baccalaureate 
level knowledge in a specific specialty. Thus, the proffered position does not meet the fourth aIternative 
criterion of a specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the record fails to demonstrate that the proffered position meets any of 
the criteria enumerated in 8 C.F.R. 5 214.2(h)(4)(iii)(A) to qualify as a specialty occupation. The 
petitioner has not established that the beneficiary will be coming temporarily to the United States to 
perform services in a specialty occupation, as required under section IOl(a)(lS)(H)(i)(b) of the Act, 
8 U.S.C. 5 1 lOl(a)(15)(H)(i)(b). 
The record indicates that the beneficiary has previously been employed in H-1B status by another U.S. 
employer. Notwithstanding the approval of the prior H-lB petition, the current petition cannot be 
approved unless the record establishes current eligibility. Each nonimrnigrant petition is a separate 
proceeding with a separate record. See 8 C.F.R. § 103.8(d). The AAO is not required to approve 
applications or petitions in which eligibility has not been demonstrated merely because of a prior approval 
that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 
597 (Comm. 1988). The record in the instant proceeding does not show that the proffered position 
qualifies as a specialty occupation. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: 
 The appeal is dismissed. The petition is denied.