dismissed H-1B Case: Human Resources

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
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 and Immigration 
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 Services 
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PUBLIC copy 
FILE: WAC 04 137 5081 5 Office: CALIFORNIA SERVICE CENTER Date: APR 0 5 2006 
PETITION: 
 Petition for a Nonimrnigrant 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: 
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. 
WAC 04 137 50815 
Page 2 
DISCUSSION: The 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 specialized vision health maintenance organization (HMO) that seeks to employ the 
beneficiary as a human resources specialist. The petitioner, therefore, 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. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis of his determination that the petitioner had failed to demonstrate 
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; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
[A]n 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. 3 214.2(h)(4)(iii)(A), in order to qualify as a specialty occupation, the proposed 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 
WAC 04 137 50815 
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(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 proposed position. 
In its April 5, 2004 letter of support, the petitioner stated that the beneficiary would take charge of the 
creation, development, and implementation of the petitioner's human resources department. Specifically, 
the beneficiary would evaluate new employees; determine the most qualified candidates for new 
positions, taking into account their behavioral patterns and proclivities; make recommendations regarding 
hiring new employees to the management; attend to the ongoing evaluation of current employees; handle 
various psychological testing, interpretations, interviews, and evaluations of current and prospective 
employees; maintain and update personnel records; plan, develop, and implement company policy 
regarding employees; counsel the petitioner's employees; carry out the decisions of management 
regarding employee issues; set policy, working conditions, and personnel management so as to create an 
effective and efficient workplace environment; and gather data on employees' feelings and emotions 
regarding factors that affect worker morale, motivation, and efficiency. 
The director denied the petition, finding that the petitioner had satisfied none of the criteria set forth at 
8 C.F.R. 5 214.2(h)(4)(iii)(A), and therefore had not established that the proposed position qualifies for 
classification as a specialty occupation. On appeal, counsel contends that the proposed position qualifies for 
classification as a specialty occupation. Counsel asserts that in denying the petition, the director committed a 
"grave abuse of discretion." 
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 
Occupational Outlook Handbook (the Handbook) for its information about the duties and educational 
requirements of particular occupations. 
In its discussion of the occupational grouping "Human Resources, Training, and Labor Relations Managers 
and Specialists," the Handbook states the following: 
Attracting the most qualified employees and matching them to the jobs for which they are 
best suited is important for the success of any organization. However, many enterprises 
are too large to permit close contact between top management and employees. Human 
resources, training, and labor relations managers and specialists provide this link. In the 
past, these workers have been associated with performing the administrative function of 
an organization, such as handling employee benefits questions or recruiting, interviewing, 
and hiring new personnel in accordance with policies and requirements that have been 
established in conjunction with top management. Today's human resources workers 
juggle these tasks and, increasingly, consult top executives regarding strategic planning. 
They have moved from behind-the-scenes staff work to leading the company in 
WAC 04 137 50815 
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suggesting and changing policies. Senior management is recognizing the importance of 
the human resources department to their financial success. 
In an effort to improve morale and productivity and to limit job turnover, they also help 
their firms effectively use employee skills, provide training opportunities to enhance 
those skills, and boost employees' satisfaction with their jobs and working conditions. 
Although some jobs in the human resources field require only limited contact with people 
outside the office, dealing with people is an essential part of the job. 
In a small organization, a human resources generalist may handle all aspects of human 
resources work, and thus require a broad range of knowledge. The responsibilities of 
human resources generalists can vary widely, depending on their employer's needs. In a 
large corporation, the top human resources executive usually develops and coordinates 
personnel programs and policies. (Executives are included in the Handbook statement on 
top executives.) These policies usually are implemented by a director or manager of 
human resources and, in some cases, a director of industrial relations. 
The proposed position does not qualify for classification as a specialty occupation under 8 C.F.R. 
9 214.2(h)(4)(iii)(A)(I), which requires a demonstration that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the particular position. As conveyed earlier in 
this decision, 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 speczj5c specialty that is directly related to the proposed 
position. A review of the Handbook's discussion regarding the credentials necessary in order to enter this 
field discloses that a baccalaureate degree in a specific specialty is not required: 
Because of the diversity of duties and levels of responsibility, the educational 
backgrounds of human resources, training, and labor relations managers and specialists 
vary considerably. 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. 
When a range of degrees, e.g., the liberal arts, or a degree of generalized title without further 
specialization, e.g., business administration, can perform the duties, the position does not qualify as a 
specialty occupation. Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988). To prove 
that a job requires the theoretical and practical application of a body of specialized knowledge as required 
by Section 214(i)(l) of the Act, a petitioner must establish that the position requires the attainment of a 
bachelor's or higher degree in a specific course of study. 
Accordingly, the proposed position does not meet the first criterion required for classification as a specialty 
occupation under 8 C.F.R. $214.2(h)(4)(iii)(A)(l). 
Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
g 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 job postings submitted by counsel. Counsel, however, has failed to consider the 
specific requirements at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(2) for establishing a baccalaureate or higher degree as 
WAC 04 137 50815 
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an industry norm. To meet the burden of proof imposed by the regulatory language, the petitioner must 
establish that its degree requirement exists in parallel positions among organizations similar to the petitioner. 
The petitioner must also establish that the degree commonly required is in a specific specialty. 
There is no evidence in the record to establish that any of the job postings are from companies similar in size 
and scope of operations to the petitioner, a specialized vision HMO with twelve employees. No information 
is submitted regarding the unnamed company advertising its vacancy through Browseabit.com, other than 
that it is in the healthlmedical field. Mountain View Healthcare appears to be a group of convalescent 
hospitals. No information is submitted regarding Ancestral Home Health Care, although it would appear 
from its name to be a home health care company, and Golden Age Convalescent appears to be a convalescent 
center. Public Storage is a real estate management company, Midway Hospital is a hospital, and the Los 
Angeles County Office of Education is a governmental entity. No evidence has been submitted to 
demonstrate that the petitioner and any of these companies are "similar organizations." 
Accordingly, the proposed position does not qualify as a specialty occupation under the first prong of 
8 C.F.R. 214.2(h)(4)(iii)(A)(2). 
The second prong of the second criterion requires that the petitioner prove that the duties of the proposed 
position are so complex or unique that only an individual with a degree can perform them. Again, the 
Handbook reveals that the proposed position is analogous to those of human resources, training, or labor 
relations specialists or managers, which are occupations that do not require a degree in a specific specialty. 
Therefore, counsel has not established that the proposed position qualifies for classification as a specialty 
occupation under either prong of 8 C.F.R. 9 2 14.2@)(4)(iii)(A)(Z). 
Nor does the proposed position qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), 
which requires a showing that the petitioner normally 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. None of these 
items were submitted. 
In order to establish eligibility under this criterion, the petitioner must demonstrate that it normally hires 
individuals with a bachelor's degree or its equivalent for the position. If the petitioner has never before filled 
the position, then it cannot qualify under this criterion. 
In order to establish that the proposed position qualifies under this criterion, counsel submits letters that the 
petitioner sent to recruitment agencies when it was seelung applicants for the position. Regarding these 
letters, counsel states the following: 
Enclosed please find copies of company requests sent to employment agencies seelung for 
[sic] a qualified individual for the position with a Bachelor's degree in Personnel 
Administration or equivalent degree and experience. 
However, the referenced letters mention no degree requirement. 
 These letters request the recruitment 
agencies to send the petitioner candidates for its human resources specialist position, state that it is a part-time 
position, and provides times for interviews. They do not reference minimum qualifications. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
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burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Nor does the "PROPOSED AD to run on Sunday, January 9, 2005" satisfy the third criterion, either. This 
advertisement does not appear to describe the proposed position, nor does it establish a minimum of a 
bachelor's degree or equivalent in a specific field. Rather, the advertisement states that it is for an office 
support manager, and that the employer will accept two years of experience in lieu of a bachelor's degree. 
Accordingly, the proposed position does not qualify as a specialty occupation under 8 C.F.R. 
9 2 14.2(h)(4)(iii)(A)(3). 
The fourth criterion, 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4), requires the petitioner to establish that the nature of the 
proposed position's duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in the specialty. As previously 
discussed, the Handbook indicates that employers do not normally require a baccalaureate degree in a 
specific specialty for human resources, training, and labor specialist or manager positions, and no evidence 
has been submitted to demonstrate that the duties of the proposed position are more specialized and complex 
than those of the aforementioned positions. Thus, the proposed position does not qualify for classification as 
a specialty occupation under 8 C.F.R. 9 214.2@)(4)(iii)(A)(4). 
The petitioner has failed to establish that the proposed position qualifies for classification as a specialty 
occupation under any of the criteria set forth at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(l), (2), (3), and (4). As 
the proposed position is not a specialty occupation, the beneficiary's qualifications to perform its duties 
are immaterial. Accordingly, the AAO will not disturb the director's denial of the petition. 
Finally, the AAO notes that the beneficiary was previously accorded H-1B status. Counsel does not raise 
this issue on appeal, but in response to the director's request for evidence the petitioner implied that this 
should serve as a basis for approval. However, this record of proceeding does not contain all of the 
supporting evidence submitted to the service center in the prior case. In the absence of all of the 
corroborating evidence contained in that record of proceeding, the documents submitted here are not 
sufficient to enable the AAO to determine whether the position offered in the prior case was similar to the 
position in the instant petition. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. tj 103.8(d). In 
making a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. 9 103.2(b)(16)(ii). 
 Although the AAO may attempt to hypothesize as to 
whether the prior case was similar to the proposed position or was approved in error, no such 
determination may be made without review of the original record in its entirety. If the prior petition was 
approved based on evidence that was substantially similar to the evidence contained in this record of 
proceeding, however, the approval of the prior petition would have been erroneous. CIS is not required to 
approve 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). Neither CIS nor any other 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). 
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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.), afd, 248 
F.3d 1 139 (5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.