dismissed H-1B Case: Human Resources

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
identifyingdatadeletedto
,lftvent clearlyunwarranted
invasionof person2Jprivacy
u.s.Citizenship
and Immigration
Services
PUBLIC COpy
SEP 142001
Date:Office: VERMONT SERVICE CENTEREAC 04 25554761FILE:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5XH)(iXb) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(HXi)(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, Chief
Administrative Appeals Office
www.uscis.gov
EAC 04 255 54761
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 textile company that seeks to employ the beneficiary as a personnel manager. The petitioner
endeavors to classifY the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section
10l(a)(15)(H)(i)(b) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The director denied the petition because the proffered position does not qualifY as a specialty occupation. On
appeal, counsel states that the offered position qualifies as a specialty occupation.
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty
occupation.
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(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)(I) of the Act, 8 U.S.C. § 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.P.R. § 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.P.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;
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(3) The employer normally requires a degree or its equival~nt 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.
§ 2l4.2(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) the 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. The AAO reviewed the record in its entirety before issuing
its decision.
The petitioner is seeking the beneficiary's services as a personnel manager. Evidence of the beneficiary's
duties includes the Form 1-129 petition with attachment and the petitioner's response to the director's request
for evidence. According to this evidence the beneficiary would:
• Interview job applicants to determine their suitability for positions within the company;
• Arrange and/or negotiate contracts for employee benefits;
• Prepare job descriptions for various positions so that the lines of authority are better defined; and
• Insure that the company is in compliance with applicable laws, including immigration laws.
The petitioner finds the beneficiary qualified for the proffered position by virtue of her bachelor's degree in
psychology from Rutgers University.
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for
information about the duties and educational requirements of particular occupations. The duties of the proffered
position 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-leveljobs, many employers seek college graduates who have
majored in human resources, human resources 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. 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 ftrst criterion of
8 C.F.R. § 214.2(h)(4)(iii)(A).
The petitioner has also failed to establish that a degree requirement, in a speciftc specialty, is common to the
industry in parallel positions among similar organizations, and offers no evidence in this regard. The
petitioner has failed to establish the referenced criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
EAC 04 25554761
Page 4
The petitioner does not state that it normally requires a degree in a specific specialty for the proffered
position, as the position is new wIth the company. The petitioner offers no evidence in this regard. The
petitioner has failed to establish the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).
The duties to be performed by the beneficiary are not so specialized and 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 petitioner states that it has a staff of 10 in the United States in addition to
staff overseas, and that its annual sales are in excess of $11,000,000. The record does not, however, contain
any information describing the complexities of the personnel manager position. The record does not contain
examples of contracts for employee benefits, or establish what such benefits consist of. Simply going on the
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft
of Califomi a, 14I&N 190 (Reg. Comm. 1972)). The duties are routine for the position in the industry and
regularly performed by individuals with education in a wide range of unrelated fields. As detailed by the
petitioner, the duties of the proffered position are generally described. From this description, it cannot be
determined that performance of the duties requires the theoretical and practical application of a body of highly
specialized knowledge. The petitioner has failed to establish the referenced criteria at 8 C.F.R.
§§ 214.2(hX4)(iii)(AX2) or (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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.s.C. § 1361.
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed.
ORDER:The appeal is dismissed. The petition is denied.