dismissed H-1B Case: Human Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 20, 2024 In Re: 29250373 
Certification of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 
8 U.S.C. § 1101(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both: (a) the theoretical and practical application 
of a body of highly specialized knowledge; and (b) the attainment of a bachelor 's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center has proposed denying the petition, having concluded the 
record did not establish the Petitioner 's proffered job qualified as a specialty occupation under section 
10l(a)(15)(H)(i)(b) of the Act and the Department of Labor (DOL) certified labor condition 
application (LCA) did not correspond to the Petitioner's proffered job. The matter is now before us 
on certification pursuant to 8 C.F .R. § 103 .4(a). On certification, the Petitioner contests the Director ' s 
proposed decision and contends that the petition should be approved. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 l&N Dec. 537, 537 n.2 (AAO 2015). Accordingly, upon de 
novo review, we will affirm the Director 's proposed decision albeit on a different basis. The petition 
will remain denied. 
I. BACKGROUND 
The Petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on the Beneficiary's behalf 
seeking a determination that its direct care professional position is a specialty occupation under section 
214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) so that the Beneficiary could be admitted to the United 
States and undertake the proffered position in H-lB classification in I I Florida. The Petitioner 
described the direct care professional's job duties as addressing the therapeutic needs of adults and 
children with special needs in behavioral, intellectual, or neurological matters in school, community, 
adult programs, and other programs and services. 
After review of the initial petition, the Director issued a request for evidence (RFE) notifying the 
Petitioner that before this petition was filed, the agency had conducted an administrative site visit 
regarding another H-lB petition it filed on another beneficiary's behalf to work as a direct care 
professional in I I Massachusetts. According to the Director, the results of the site visit raised 
concerns regarding the reliability of the job duties the Petitioner provided for this petition's proffered 
direct care professional position. So the Director requested the Petitioner provide additional evidence 
(i) of the job duties of this petition's direct care professional position, (ii) that the occupation requires 
both the theoretical and practical application of a body of highly specialized knowledge and the 
attainment of a bachelor's or higher degree in a specific specialty or its equivalent as a minimum for 
entry, and (iii) that the proffered position meets one of the four criteria contained at 8 C.F.R. § 
214.2(h)( 4)(ii). 
In response, the Petitioner reiterated its assertion that its proffered direct care professional position is 
a specialty occupation. It submitted a letter from its people operations director in I 
Massachusetts attesting that the requirements of the proffered direct care professional are a bachelor's 
degree in psychology, sociology, social work, education, or related field, or a high school diploma 
plus 12 years of human service experience, along with an advertisement for a direct care professional 
at its location in Florida listing the same minimum requirements for entry into the position. It 
also provided a letter from its national people operations director based inl I Pennsylvania 
stating the requirements of the direct care professional are a bachelor's degree in psychology, 
sociology, social work, education, or directly related human services field, expert opinion letters, a 
copy of Federal Rule of Evidence 703, a copy of the "Rehabilitation Counselor" entry in the DOL's 
Occupational Outlook Handbook (Handbook), job advertisements for purportedly similar roles with 
other U.S. employers, education documents for other direct care professionals currently employed by 
the Petitioner, a listing of fields of study that can be categorized as human services, evidence 
supporting the Petitioner's claim of exemption from the H-lB numerical limits, copies of DOL 
Employment and Training Administration Form 9141, Application for Prevailing Wage 
Determination, filed by the Petitioner in connection with permanent employment certification 
applications for its direct care professionals, U.S. Department of Homeland Security's (DHS) "Privacy 
Impact Assessment for Fraud Detection and National Security Data (FDNS-DS)," and an explanation 
that position titles do not indicate identical job duties across a company. 1 
As stated above, the Director proposed denying the petition based on their determination that the 
record did not establish the Petitioner's proffered job qualified as a specialty occupation under section 
10l(a)(15)(H)(i)(b) of the Act, and that the certified LCA does not correspond to the Petitioner's 
proffered job. 
II. SCOPE OF REVIEW 
We will be addressing a narrow issue on certification. We will solely discuss whether 
the record, as 
it is presently constituted, supports the Petitioner's contention that the proffered position of direct care 
professional in I I Florida is a specialty occupation as that term is defined in the statute and 
regulations. The proceedings, thus far, have focused on the true nature of the Petitioner's direct care 
professional's job duties. In fact, the record contains expressions of three separate sets of job duties: 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
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one set offered by the Petitioner, one set advanced by the United States Citizenship and Immigration 
Services (USCIS) representative conducting the administrative site visit, and one set composed of the 
Petitioner's responses at that administrative site visit to the questions posed by the USCIS 
representative. 
However, as we will describe below, the question of the specialty occupation nature of the Petitioner's 
proffered direct care professional position is resolved, not in choosing from one of the three sets of 
job duties contained in the record, but by evaluating the proffered position's minimum requirements. 
And denial of the petition is mandated because the minimum requirements do not meet the threshold 
requirements for a specialty occupation contained in the statue and regulations. 2 So, albeit with a 
different rationale, we agree with the Director's ultimate decision and the petition will remain denied. 
III. SPECIAL TY OCCUPATION 
A. Legal Framework 
"Specialty Occupation" is defined as an occupation that requires: (A) the 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. See section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered 
position must also meet one of the following criteria to qualify as a specialty occupation: 
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. 
USCIS analyzes the employer's prior practice, as well as the industry norm for parallel positions, to 
assure that a petitioner's requirements do not merely state a degree requirement or its equivalent in a 
specific specialty when such a degree is not actually required to perform the proffered job duties. 
2 Whilst we may not agree with some of the Director's statements about the nature and duties of the proffered position, 
our conclusion that the Petitioner's direct care professional position is not a specialty occupation is dispositive and 
precludes the petition's approval. Consequently, we do not need to discuss the conespondence of the LCA to the proffered 
position because it would serve no legal purpose. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies 
are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter 
of L-A-C-, 26 l&N Dec. 216, 526n.7 (BIA 2015) (declining to reach alternate issues on appeal where an applicant is 
otherwise eligible). 
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See Matter of Caron International, Inc., 191 I&N Dec. 791, 793-794 (BIA 1988) The burden of 
proof to establish eligibility under the statute and regulation is squarely a petitioner's alone. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 145 (1st Cir. 2007) ("The burden of proving that a particular 
position comes within this taxonomy (and thus qualifies as a specialty occupation) is on the 
applicant."). 
Moreover, job title or broad occupational category alone does not determine whether a particular job 
is a specialty occupation under the regulations and statute. The nature of a petitioner's business 
operations along with the specific duties of the proffered job are also considered. We must evaluate 
the employment of the individual and determine whether the position qualifies as a specialty 
occupation. See Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). So, a petitioner's self-imposed 
requirements are not as critical as whether the nature of the offered position requires the application 
of a theoretical and practical body of knowledge gained from earning the required baccalaureate or 
higher degree in the specific specialty (or its equivalent) required to accomplish the duties of the job. 
The statute and regulations must be read together to ensure the proffered position meets the definition 
of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statute as a whole is preferred); 
see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations separately 
could lead to scenarios where a petitioner satisfies a regulatory factor, but not the definition of 
specialty occupation contained in the statute. See Defensor, 201 F.3d at 387. The regulatory criteria 
read together with the statute gives effect to the statutory intent. See Temporary Alien Workers 
Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 
2, 1991). 
So, we construe the term "degree" in 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate 
or higher degree or its equivalent, but one in a specific specialty that is directly related to the proffered 
position supporting the statutory definition of specialty occupation or its equivalent. See Royal Siam 
Corp., 484 F.3d at 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). USCIS' 
application of this standard has resulted in the orderly approval of H-lB petitions for engineers, 
certified public accountants, information technology professionals, and other occupations 
commensurate with what Congress intended when it created the H-lB category. 
B. Analysis 
As stated above, a specialty occupation is defined as an occupation that requires: (A) the 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. See section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). Here, the proffered 
position does not meet either the statutory or regulatory definition of the term "specialty occupation." 
USCIS is required to evaluate the proffered position based on the evidence and documentation a 
petitioner submits into the record, irrespective of whether the Handbook or another source indicates a 
particular occupation could be a specialty occupation. A petitioner may demonstrate that a proffered 
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position is a specialty occupation when the entry-level requirement for the position is a bachelor's or 
higher degree in a specific field of endeavor related to the specialty required to perform the job's 
duties. The statute also permits a petitioner to demonstrate how educational and/or experiential 
credentials equivalent to a baccalaureate level education in a specific specialty can confer the 
theoretical and practical body of highly specialized knowledge required to perform the duties of the 
proffered position. We must always determine if the petition involves a specialty occupation as 
defined in the statute and regulations based upon a petitioner's own requirements, duties, and the 
nature of its business operations. The Petitioner here states that it accepts a bachelor's degree in 
psychology, sociology, social work, education, or a related field, or a high school diploma with 12 
years of "human service experience" as a minimum qualification for entry into the proffered position. 
The Petitioner contends that, in accordance with its industry's standard, it considers "human services" 
to consist of fields "meeting human needs through an applied knowledge base, focusing on prevention 
as well as remediation of problems, and maintaining a commitment to improving the overall quality 
of life of service populations." The record also contains a list of "approved human services degrees" 
submitted in response to the Director's RFE. That list is populated with diverse fields like 
anthropology, criminal justice, nutrition, and divinity/religion/theology, all of which also ostensibly 
meet "human needs through an applied knowledge base, focusing on prevention as well as remediation 
of problem, and maintaining a commitment to improving the overall quality of life of service 
populations" as they are "approved human services degrees." When the very knowledge required to 
perform the duties of a position can be gained from a wide and disparate range of degree fields, it 
follows that the knowledge is not a theoretical and practical body composing a specialty required to 
perform the duties of the proffered position. The Petitioner does not point to any material, relevant, 
or probative documentation that would sufficiently establish that "human services," as the Petitioner 
defines the term in this petition, is an industry standard with specific meaning in its field denoting a 
specialty required to perform the proffered job duties or that degrees in the realm of human services 
are sufficiently related to one another and to the proffered job duties such that they compose a 
specialty. 
We would also note that the Petitioner's alternate requirement of a high school diploma combined 
with 12 years of human services experience is inconsistently expressed in the documents it submits to 
support the specialty nature of the proffered job. For example, the Petitioner's people operations 
director in I I Massachusetts attested that the requirements of the proffered direct care 
professional are a bachelor's degree in psychology, sociology, social work, education, or related field, 
or a high school diploma plus 12 years of human service experience. And the record includes an 
advertisement for a direct care professional inl IFlorida, which contains the alternate requirement 
of a high school diploma combined with 12 years of human services experience. But the letter from 
its national people operations director based in I I Pennsylvania stated the requirements of the 
direct care professional are a bachelor's degree in psychology, sociology, social work, education, or a 
directly related human services field, and omitted the alternative requirement of a high school diploma 
plus 12 years of human service experience. Similarly, the DOL Forms 9141 containing prevailing 
wage determinations for direct care professional positions at the Petitioner's various locations do not 
contain any requirement for human services experience. Moreover, the advertisements from other 
employers seeking candidates for positions ostensibly like the proffered direct care professional do 
not sufficiently describe what constellation of degrees the term human services is used to describe in 
the advertisements and whether it constitutes a specialty required to perform the duties of the job. In 
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at least two submitted advertisements, the human services degree requirement is modified with the 
qualifiers "any" or "other" which lacks specificity. And none of the advertisements contained an 
alternative requirement resembling 12 years of human services experience after earning a high school 
diploma. In sum, the submitted advertisements reflect that the employers would accept a variety of 
degrees with some experiential qualifications. 
The Petitioner also submitted expert opinions letters that focused mainly on the direct care 
professional's job duties, the applicability of psychology, sociology, social work, education, or a 
related field to the proffered job duties, and how the degree fields composed a specialty required to 
perform the proffered job duties. But the authors did not discuss how the Petitioner's alternate 
requirement of a high school diploma with 12 years of human services experience (as the Petitioner 
defines the term "human services") would comprise a body of theoretical and practical knowledge 
amounting to a specialty required to perform the duties of the proffered direct care professional 
position. In fact, none of the opinions mentioned nor identified the alternative requirement of a high 
school diploma with 12 years of human services experience; it was omitted from the analysis contained 
in both expert opinion statements. As a matter of discretion, we may use opinion statements submitted 
by the Petitioner as advisory. Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). The 
submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of 
V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008). When, as here, expert opinions are not in accord with 
other information in the record, they are afforded less weight. Id. 
Finally, the Petitioner relies on the "3 for l" rule contained at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). But 
the Petitioner's application of this rule to claim eligibility for designation of the direct care professional 
as a specialty occupation is misplaced. The regulation does not create a blanket equivalency rule for 
work experience to education; it is a delegated authority to USCIS to make equivalency determinations 
in the context of evaluating the qualifications of individual beneficiaries of H-1 B petitions. Moreover, 
it is a calculation for determining a beneficiary's qualification to perform the duties of a specialty 
occupation after it has already been determined that a specialty occupation exists. There is no 
analogous rule permitting us to evaluate equivalencies or alternate minimum requirements for entry to 
a particular position. 
The inconsistencies identified above, viewed together with the expansive list of examples of human 
service degrees submitted, envelope the Petitioner's requirements with an opacity that impedes 
establishment of the proffered job's true minimum requirements. So, we cannot conclude that the 
Petitioner has sufficiently demonstrated that its stated alternative requirement of 12 years of human 
services experience with a high school diploma provides the theoretical and practical body of 
knowledge comprising a specialty required to perform the job's duties of its direct care professional 
position. 
Without the requirement of a baccalaureate or higher degree or its equivalent providing the theoretical 
and practical application of a body of highly specialized knowledge, the supplemental regulatory 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) cannot be satisfied. The supplemental regulatory 
criteria are read together within the related regulations and the statute as a whole. So, where the 
regulations refer to the term "degree," we interpret that term to mean a baccalaureate or higher degree 
in a specific specialty related to the proffered position or its equivalent. See Royal Siam, 484 F.3d at 
147. The word "degree" is mentioned in each prong of the supplemental regulatory criteria at 8 C.F.R. 
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§ 214.2(h)( 4)(iii)(A)(l)-( 4). And where, as here, a baccalaureate or higher degree or its equivalent in 
a specific specialty is not required as a minimum requirement of entry, it follows that each prong under 
8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) remains unsatisfied. So, we are not required to consider the 
Petitioner's assertions and the evidence it submits in support of its contention that it satisfies the 
supplemental regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). We agree with the Director 
and conclude denial of the petition is the sole permissible outcome for this petition under the applicable 
law and regulations. 
IV. CONCLUSION 
The petition will remain denied for the above stated reasons. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The petition is denied. 
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