dismissed H-1B Case: Human Resources

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
puBLIC COPY 
U. S. Citizenship 
and Immigration 
bc, , 
FILE: WAC 0) 193 50964 Office: CALIFORNIA SERVICE CENTER Date: JAN 2 ? 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101(a)(l S)(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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
- 
WAC 03 193 50964 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant 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 manages and produces the Los Angeles auto show. It seeks to employ the beneficiary as a 
human resources manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonimrnigrant 
worker in a specialty occupation pursuant to section 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. tj 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition, finding that the proffered position is not a specialty occupation and the 
beneficiary is not qualified to perform a specialty occupation. On appeal, counsel states that the proffered 
position qualifies as a specialty occupation, and that the beneficiary is qualified to perform a specialty 
occupation. Counsel submits additional and previously submitted evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. § 11 84(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. tj 214.20(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 laowledge 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. 
tj 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. 
WAC 03 193 50964 
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The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (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. 
The petitioner is seeking the beneficiary's services as a human resources manager. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's 
support letter; and the petitioner's response to the director's request for evidence. According to this evidence, 
the beneficiary would perform duties that entail managing outside recruitment agencies and headhunters and 
handling screening procedures; drafting, developing, planning, modifying, and implementing a policy manual 
covering insurance, medical plans, pension plans, personnel transactions, company policies, disability 
information, terminations, and job behavior; creating individual and group training programs; formulating 
policies on employment, employee standards, employee relations, wage and salary administration, benefit 
administration, and orientation and training development; ensuring compliance with federal, state, and local 
laws, regulations, and ordinances; preparing a budget for anticipated personnel operations; maintaining 
employee records; and analyzing statistical data designed to identify and determine personnel problems and 
develop recommendations to improve personnel policies and practices. The petitioner requires a 
baccalaureate degree in human resources, labor relations, business administration, or a liberal arts related field 
such as psychology. 
The director determined that the proposed position resembles a personnel clerk as that occupation is depicted 
in the Department of Labor's Occupational Outlook Handbook (the Handbook). The director conceded that a 
human resources manager often qualifies as a specialty occupation where a company is large and has a 
specific department dedicated to human resource issues, and the nature of the duties require a degree in 
human resources or a related field. The director found that the petitioner is small and that the proposed duties 
are routine and normally performed by management staff or a personnel clerk, and that the petitioner does not 
have the organizational complexity to require the services of a human resources manager. The duties 
performed by the show directorlcorporate president, the director stated, include employee recruitment and 
_ employee training. The director concluded that the beneficiary is not qualified to perform a specialty 
occupation requiring a baccalaureate degree in human resources or a related field. 
On appeal, counsel discusses the proposed duties, the educational requirement of a baccalaureate de ee in 
psychology, and the beneficiary's employment experience. Counsel states that the letters from m assistant professor of labor economics at the New York State School of Industrial and Labor 
Relations at Cornell University, and professor at the Industrial Relations Center within 
the Carlson School of Management at the University of Minnesota, establish that the proposed position 
requires a baccalaureate degree in human resources, management, business administration, or psychology. 
Counsel states that the director conceded a human resources manager often qualifies as a specialty 
occupation. However, counsel disagrees with the director's conclusion that the petitioner lacked the 
organizational complexity to require the services of a human resources manager. Counsel refers to the 
Handbook and the submitted letters from-, to distinguish the proposed duties 
from those of a personnel clerk. Counsel cites Unico American Corp. v. Watson, 1991 WL 11002594 (C.D. 
WAC 03 193 50964 
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Cal. Mar 19, 1991), and states that case law has long held that an employer's supporting evidence must be 
considered and weighed. Counsel also cites Hung Kong T. V. Video vs. Ilchert, 685 F. Supp 712 (N.D. Cal. 
1988), and Immediate Business Systems vs. Richard, 645 F. Supp. 355 (N.D. Ga. 1986), and states that the 
cases indicate that the testimony of experts which is not contradicted by CIS must be considered. Counsel 
discusses the definition of an expert in the Federal Rules of Evidence. Counsel maintains that the Handbook 
discloses that the proposed position resembles a human resources manager, and that it reports that that 
occupation requires the services of a degreed professional. In citing to Young China Daily vs. Chappell, 742 
F. Supp. 552 (N.D. Cal. 1998), counsel states that the case indicates that the size of a petitioner is irrelevant in 
determining whether a position qualifies as a specialty occupation. Counsel states that the human resources 
duties performed by the show directorlcorporate president reflect only two of the proposed duties. Counsel 
asserts that the Los Angeles Auto Show requires staffing on an ongoing basis throughout the year. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
3 214,2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria include: whether the Handbook reports that the industry 
requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. 
In a February 27, 2004 letter, counsel's reference to and assertions about the relevance of information fiom 
the Occupational Information Network-Standard Occupational Classz$cation (O*Net-SOC) is not persuasive. 
Neither a specific vocational preparation (SVP) rating nor a Job Zone category indicates that a particular 
occupation requires the attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty 
as a minimum for entry into the occupation. An SVP rating and Job Zone category are meant to indicate only 
the total number of years of vocational preparation required for a particular position. Neither classification 
describes how those years are to be divided among training, formal education, and experience, nor specifies 
the particular type of degree, if any, that a position would require. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. The AAO does not concur with the director's conclusion that the proposed position 
WAC 03 193 50964 
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resembles a personnel clerk. The AAO finds that the proposed duties resemble those of human resources, 
training, and labor relations managers and specialists, as those occupations are depicted in the Handbook, and 
that the Handbook discloses that a baccalaureate degree in a specific specialty is not required for those 
occupations. It reports: 
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. 
The Handbook's passage indicates that a baccalaureate degree in a specific specialty is not required for a 
human resources, training, and labor relations specialist or manager as employers accept baccalaureate 
degrees in fields which range from technical or business to the liberal arts. 
The submitted California Occupational Guide (COG) also shows that a human resources manager does not 
require a baccalaureate degree in a specific specialty; it states: 
Entry-level professional positions in [hluman [rlesources normally require a four year college 
degree. The preferred degree could vary fiom business administration with a human 
resources specialization to industrial relations or sociology. Some employers may look for a 
well-rounded background and choose liberal arts graduates. 
Counsel cites Hong Kong T. J! Video and Immediate Business Systems ahd states that the cases indicate that 
the evidence from experts such asmust be considered. Although the letters 
are relevant in determining whether the proposed position qualifies as a specialty occupation, the AAO finds 
that no independent evidence in the record substantiates their assertion that the proposed position resembles a 
human resources manager and that a human resources manager requires a baccalaureate degree in a specific 
specialty such as human resources management, business administration, or psychology. 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)) The AAO notes that the Handbook, which is a 
compilation of data from nationwide surveys, questionnaires, interviews, and other studies, indicates that a 
broad range of degrees is acceptable to perform as a human resources manager. CIS may, in its discretion, 
use as advisory opinions statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, CIS is not required to accept or may give less 
weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). The AAO also 
notes that a degree requirement of business administration does not qualify a position as a specialty 
occupation. As indicated in Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm. 1988), for a 
position to qualify as a specialty occupation: 
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A petitioner must establish that the position realistically requires knowledge, both theoretical 
and applied, which is almost exclusively obtained through studies at an institution of higher 
learning. The depth of knowledge and length of studies required are best typified by a degree 
granted by such institution at the baccalaureate level. It must be demonstrated that the 
position requires a precise and specific course of study which relates directly and closely to 
the position in question. Since there must be a close corollary between the required 
specialized studies and the position, the requirement of a degree of generalized title, such as 
business administration or liberal arts, without further specification, does not establish 
eligibility. 
Accordingly, based on the evidence in the record, the petitioner fails to establish the first criterion at 8 C.F.R. 
$ 214.2(h)(4)(iii)(A): that a baccalaureate or higher degree or its equivalent in a specific specialty is the 
normal minimum requirement for entry into the particular position. 
To establish the first alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) - that a specific degree requirement 
is common to the industry in parallel positions among similar organizations - the record contains job postings. 
Of the 31 job postings, 10 require a baccalaureate degree in a specific specialty. However, none of the job 
postings requiring a baccalaureate degree in a specific discipline represent companies similar in nature (size 
and scope) as the petitioner. AT&T Broadband and Nextel are technology companies; Wendy's International, 
Inc. is a billion dollar company; Fifth Third Bank and Credit Acceptance Corporation are in the financial 
sector; Lockheed Martin is in the defense industry; Private Healthcare Systems is in the health care industry; 
and Guardian Automotive, ICOS Corporation, and Best Buy Company are not described. The postings, 
therefore, fail to establish that a specific degree requirement is common to the industry in parallel positions 
among similar organizations. 
To establish the second alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) the petitioner must show that the 
proffered position is so complex or unique that it can be performed only by an individual with a degree. The 
Handbook reports that the proposed duties parallel those of human resources, training, or labor relations 
specialists or managers, which are occupations that do not require a baccalaureate degree in a specific 
specialty. The petitioner, therefore, fails to establish the second alternative prong at 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(A). 
The third criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A) requires that the petitioner show that it normally requires a 
degree or its equivalent for the position. The petitioner submitted no evidence to establish this criterion. 
The fourth criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A) requires that the petitioner demonstrate 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 baccalaureate or higher degree in a specific specialty. The proposed duties 
resemble those of a human resources, training, and labor relations specialist or manager, which are the 
occupations that the Handbook indicates do not require a baccalaureate degree in a specific specialty. 
Consequently, the petitioner fails to establish this last criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A). 
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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 on this 
ground. 
The director also found that the beneficiary is not qualified to perform a specialty occupation. The AAO has 
concluded that the proposed position fails to qualify as a specialty occupation; therefore, whether or not the 
beneficiary is qualified for the proposed position is irrelevant in this proceeding. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.