dismissed H-1B Case: Human Resources

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. ,43042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 256 53632 office: VERMONT SERVICE CENTER Date: SEP 0 6 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 04 256 53632 
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 an information technology consulting and web development company that seeks to e:mploy the 
beneficiary as a human resources manager. The petitioner endeavors to classify the beneficiary 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. 5 I lOl(a)(15)(H)(i)(b). 
The director denied the petition because the proffered position does not qualify as a specialty occupation, and 
because the beneficiary is not qualified to perform the duties of a specialty occupation. On appeal, counsel 
submits a brief stating that the offered position qualifies as a specialty occupation and that the beneficiary is 
qualified to perform the duties of a specialty occupation. 
The first issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section 10 1 (a)(l 5)(H)(i)(b) of the Act, 8 U.S.C. 9 I 10 1 (a)(l 5)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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 ii 
minimum for entry into the occupation in the United States. 
The term "specialty occupation" is further defined at 8 C.F.R. tj 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. 5 214.2(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; 
EAC 04 256 53632 
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(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 are 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) the Form 1-129 and supporting documentation; (2) 
the director's denial letter; and (3) the Form I-290B with 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 was set forth in the Form 1-129 petition and attachment. According to this evidence the 
beneficiary would: 
Recruit, hire and train employees; 
Administer personnel planning to ensure timely filling of positions; 
Coordinate payroll payments with the accounts officer and payroll company; and 
Develop the human resource information system. 
The petitioner requires a minimum of a master's degree in business managemendadministration for entry into 
the proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. Factors often considered by CIS when determining these criteria include: whether the Department 
of Labor's OccupationaI OutIook Handbook (Handbook) reports that the industry requires a degree; whether 
an industry professional association has made a degree a minimum entry requirement; and whether lletters 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, 7 12 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
EAC 04 256 53632 
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particular occupations. The duties of the proffered position, though generally described, appear to fall within 
those noted for human resource managers. The Handbook notes that because of the diversity of duties and level 
of responsibility associated with these positions, the educational backgrounds of individuals filling them varies 
considerably. When filling entry-level jobs, employers usually seek college graduates. Many prefer applicants 
who have majored in human resources, personnel administration, or industrial and labor relations. Others look 
for college graduates with a technical or business background, or a well-rounded liberal arts education. It is, 
therefore, apparent that a bachelor's degree in a specific specialty is not required for entry into the position. A 
degree in any number of disciplines will suffice. The petitioner has failed to establish the first criterion of 
8 C.F.R. 5 2 14.2(h)(4)(iii)(A). 
The petitioner has also failed to establish that a degree requirement, in a specific specialty, is common to the 
industry in parallel positions among similar organizations, and offers no evidence in this regard. Counsel 
states in his brief on appeal that copies ofjob advertisements were being enclosed from the Society of Human 
Resource Management in support of this assertion, along with letters from other employers affirming the need 
for individuals with bachelor's degrees. No advertisements or letters were included with the brief, however. 
The petitioner has failed to establish the referenced criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The petitioner states that it normally requires a degree for the proffered position, and indicates that the 
president of the company was originally recruited as the human resource manager, and that the president has 
identical credentials to those of the beneficiary. The petitioner did not, however, include any documentary 
evidence in support of that assertion. Simply going on the record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California 14 I&N 190 (Rep;. Comm. 
1972)). Further, CIS must examine the ultimate employment of the alien, and determine whether tht: position 
qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 F. 3d 384 (5'h Cir. 2000). The critical 
element is not the title of the position or an employer's self-imposed standards, but whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge:, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entrq into the 
occupation as required by the ~ct.' To interpret the regulations any other way would lead to absurd results: 
if CIS were limited to reviewing a petitioner's self-imposed employment requirements, then any a1it:n with a 
bachelor's degree could be brought into the United States to perform menial, non-professional, or an 
otherwise non-specialty occupation, so long as the employer required all such employees to have 
baccalaureate or higher degrees. See id at 388. The petitioner has failed to establish the criterion at 8 C.F.R. 
8 2 1 4.2(h)(4)(iii)(A)(3). 
Finally, the duties to be performed by the beneficiary are not so specialized or complex that knowledge 
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty. Nor are the duties so complex or unique that they can be performed only by an individual 
with a degree in a specific specialty. The duties are routine for the position in the industry. The petitioner has 
failed to establish the referenced criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(2) or (4). 
1 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
EAC 04 256 53632 
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The final issue to be considered is whether the beneficiary is qualified to perform the duties of a specialty 
occupation. It has been determined that the offered position is not a specialty occupation. Thus, there is no 
regulatory requirement that the petitioner possess any specific level of education in order to qualify to 
perform the duties of that position. It should be noted, however, that the petitioner requires a master's degree 
in business management/administration for entry into the offered position. The credentials evaluation 
submitted by the petitioner indicates that the beneficiary's foreign education is equivalent to only ia Bachelor 
of Arts degree in management and social work. The beneficiary would, therefore, not qualify for the position 
pursuant to the petitioner's own requirements. 
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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 136 1. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.