dismissed H-1B Case: Industrial Engineering

U.S. Department of Homeland Security 
20 Massachusetts Ave NW, Rm. ~3042 
Wash~ngton, DC 20529 
dear:: U.S. Citizenship 
and Immigration 
FILE: WAC 02 220 54035 Office: CALIFORNIA SERVICE CENTER Date: FEB 0 3 ?OD' 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 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 materials 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 02 220 54035 
Page 2 
DISCUSSION: The service center director initially approved the nonimmigrant visa petition. The director 
subsequently revoked the approval. The matter is now on appeal before the Administrative Appeals Office 
(AAO). The appeal will be dismissed. The petition will be revoked. 
The petitioner is a construction and remodeling company. It seeks to employ the beneficiary as an 
industrial engineer and to classify him as a nonimrnigrant worker in a specialty occupation pursuant to 
section IOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101 
(a)( 15)(H)(i)(b). 
The director gave notice to the petitioner of his intent to revoke, and subsequently revoked, the petition on 
the ground that the record failed to establish that the subject position is a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
As provided in 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; 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
9 214.2(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 regulation at 8 C.F.R. 5 214.2(h)(ll)(iii) establishes the procedure for revocations on notice of the 
director. It reads as follows: 
WAC 02 220 54035 
Page 3 
(A) Grounds for revocation. The director shall send to the petitioner a notice of intent to revoke 
the petition in relevant part if he or she finds that: 
(I) The beneficiary is no longer employed by the petitioner in the capacity specified in 
the petition, or if the beneficiary is no longer receiving training as specified in the 
petition; or 
(2) The statement of facts contained in the petition was not true and correct; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section lOl(a)(15)(H) of the Act or 
paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or involved gross 
error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the 
grounds for the revocation and the time period allowed for the petitioner's rebuttal. The 
petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The 
director shall consider all relevant evidence presented in deciding whether to revoke the 
petition in whole or in part. If the petition is revoked in part, the remainder of the petition 
shall remain approved and a revised approval notice shall be sent to the petitioner with the 
revocation notice. 
The record of proceeding before the AAO contains (1) Form 1-129 and supporting documentation; (2) the 
approval notice (Form I-797A); (3) the notice of intent to revoke (NOIR); (4) the petitioner's response to 
the NOIR and supporting materials; (5) the notice of decision; and (6) Form I-290B and an appeal brief. 
The AAO reviewed the record in its entirety before issuing its decision. 
In a letter accompanying the Form 1-129 the petitioner stated that its company is in the business of 
reconstructing and remodeling residential and commercial buildings such as apartments, condominiums, 
offices, restaurants, shopping centers, warehouses, and retail stores. The business was established in 
1987, the petitioner indicated, had four employees and gross annual income of $330,000, and proposed to 
employ the beneficiary as an industrial engineer to facilitate the company's expected growth. The duties 
of the proffered position were listed as follows: 
Determine the most effective ways to use machines, materials information and financial 
resources to make product[s] or provide service to our projects. 
Coordinate with management and design staff to create methods and procedures for 
business operation in order to increase productivity. 
Organize projects and their requirements and resolve organizational, production, and 
related business operational issues. 
Use engineering and mathematical tools to set up manufacturing and informational 
systems. 
WAC 02 220 54035 
Page 4 
Develop management control systems, design production planning and control systems to 
coordinate activities and control product quality and cost including designing or 
improving systems for the physical distribution of materials and services. 
Assist the executive staff to develop compensation and salary administrative systems and 
performance evaluation programs. 
The minimum educational requirement for the position, the petitioner declared, was a bachelor's degree 
in industrial engineering. The record indicates that the beneficiary received a bachelor of science degree 
from the Kunming Institute of Technology in China on August 10, 1982. According to a report in the 
record from an educational credentials evaluation service, the beneficiary's degree is equivalent to a 
bachelor of science in industrial engineering from a U.S. college or university. 
The petition was initially approved by the director in July 2002. In January 2004 the director sent the 
petitioner a notice of intent to deny (NOIR), advising that a reevaluation of the petition cast doubt on 
whether the beneficiary was actually performing the services of an industrial engineer. In response to the 
NOIR the petitioner maintained that the beneficiary was performing the services of an industrial engineer, 
and supplemented the previous record with additional documentary evidence including a cost estimate 
report for a residential project identifying the beneficiary as the project manager, an excerpt from the 
petitioner's 2001 federal income tax return, Form W-2 wage and tax statements from the years 2001- 
2003, and some materials pertaining to new business proposals. 
In his decision, dated March 3, 2004, the director determined that the duties of the proffered position 
reflected those of a construction manager, as described in the Department of Labor (D0L)'s Occupational 
Outlook Handbook (Handbook), and quoted information in the Handbook indicating that a baccalaureate 
degree in a specific specialty is not the normal minimum requirement for entry into such a position. 
There was no evidence in the record that the petitioner normally requires applicants for the proffered 
position to have a baccalaureate or higher degree in the field, the director stated, or that the duties and 
responsibilities of the position indicated complexity or authority beyond that normally encountered in the 
occupational field. The director concluded that the proffered position does not meet any of the criteria of 
a specialty occupation enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal the petitioner reiterates its contention that the proffered position is that of an industrial 
engineer, rather than a construction manager. Even if the position is deemed to be a construction 
manager, however, the petitioner asserts that the director misinterpreted the DOL Handbook which, 
according to the petitioner, "clearly indicates that the degree requirement is increasingly necessary" for 
construction managers. The petitioner quotes information in the Handbook indicating that more than 100 
colleges and universities offer baccalaureate degree programs in construction management or construction 
science and around 20 such institutions offer master's degree programs in those fields. According to the 
petitioner, the beneficiary's baccalaureate degree coursework gave him the requisite knowledge of 
economics, material processing and advanced mathematics, computer science, structural mechanics and 
engineering mechanics, as well as enterprise management and material processing, to be able to perform 
the various duties of the position. Whether the position is called an industrial engineer or a construction 
manager, therefore, the petitioner asserts that a baccalaureate degree is required to perform the duties of 
the job, thereby making it a specialty occupation. 
WAC 02 220 54035 
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In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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 1151, 1165 (D.Minn. 1999) (quoting HiraBlaker Corp. v. Suva, 
712 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
The occupation of industrial engineer is described in the Handbook, 2004-05 edition, at 135-36: 
Industrial engineers determine the most effective ways to use the basic factors of 
production - people, machines, materials, information, and energy - to make a product or 
to provide a service. They are the bridge between management goals and operational 
performance. They are more concerned with increasing productivity through the 
management of people, methods of business organization, and technology than are 
engineers in other specialties, who generally work more with products or processes. 
Although most industrial engineers work in manufacturing industries, they may also work 
in consulting services, healthcare, and communications. 
To solve organizational, production, and related problems most efficiently, industrial 
engineers carefully study the product and its requirements, use mathematical methods 
such as operations research to meet those requirements, and design manufacturing and 
information systems. They develop management control systems to aid in financial 
planning and cost analysis and design production planning and control systems to 
coordinate activities and ensure product quality. They also design or improve systems for 
the physical distribution of goods and services. Industrial engineers determine which 
plant location has the best combination of raw materials availability, transportation 
facilities, and costs. Industrial engineers use computers for simulations and to control 
various activities and devices, such as assembly lines and robots. They also develop 
wage and salary administration systems and job evaluation programs . . . . 
Based on the evidence of record, the AAO determines that the proffered position does not fit the 
Handbook's description of an industrial engineer. The petitioner is not in the business of manufacturing 
or production; it is a construction and remodeling company. The duties of the position, as described by 
the petitioner, do not indicate a level of sophistication that requires the highly specialized knowledge of 
an industrial engineer. Though the petitioner recites some of the Handbook's language on industrial 
engineers in its list of the job duties, no specific information is provided about the tasks the beneficiary 
performs on a daily basis. The petitioner has provided no substantive examples of how the beneficiary 
uses mathematical methods to solve organizational or production problems, or designs manufacturing and 
information systems, or develops management control systems to aid in financial planning and cost 
analysis, or designs systems for the physical distribution of goods and services, or develops employee 
systems governing such issues as wages and job evaluations. These are the duties of an industrial 
WAC 02 220 54035 
Page 6 
engineer, as indicated in the Handbook, but the petitioner has not shown that the beneficiary performs 
such tasks. 
In determining the nature of a particular position and whether it is qualifies as a specialty occupation, the 
duties actually performed are determinative, not the title of the position. The petitioner must establish 
that a specialty degree is required by the performance demands of the position. The critical issue is not 
the employer's self-imposed standard, 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 a minimum for entry into the occupation. Cj Defensor v. 
Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000). In this case the evidence fails to demonstrate that the 
performance demands of the proffered position require the services of an individual with a degree in 
industrial engineering or a related specialty. 
The AAO agrees with the director that the duties of the proffered position reflect those of a construction 
manager, as described in the Handbook, 2004-05 edition, at 28: 
Construction managers plan and coordinate construction projects. They may have job 
titles such as constructor, construction superintendent, general superintendent, project 
engineer, project manager, general construction manager, or executive construction 
manager. . . . 
Managers who work in the construction industry, such as general managers, project 
engineers, and others, increasingly are called constructors. Constructors manage, 
coordinate, and supervise the construction process from the conceptual development 
stage through final construction on a timely and economical basis. Given designs for 
buildings, roads, bridges, or other projects, constructors oversee the organization, 
scheduling, and implementation of the project to execute those designs. They are 
responsible for coordinating and managing people, materials, and equipment; budgets, 
schedules, and contracts; safety of employees and the general public. 
With respect to the education and training required for construction managers, the Handbook states as 
follows: 
Persons interested in becoming a construction manager need a solid background in 
building science, business, and management, as well as related work experience within 
the construction industry. They need to understand contracts, plans, and specifications, 
and to be knowledgeable about construction methods, materials, and regulations. 
Familiarity with computers and software programs for job costing, online collaboration, 
scheduling, and estimating also in important. 
Traditionally, persons advance to construction management positions after having 
substantial experience as construction craftworkers - carpenters, masons, plumbers, or 
electricians, for example - or having worked as construction supervisors or as owners of 
independent specialty contracting firms overseeing workers in one or more construction 
trades. However, employers - particularly large construction firms - increasingly prefer 
individuals who combine industry work experience with a bachelor's degree in 
' WAC 02 220 54035 
Page 7 
constructions science, construction management, or civil engineering. Practical industry 
experience also is very important, whether it is acquired through internships, cooperative 
education programs, or work experience in the industry. 
Handbook, id., at 29-30. As indicated in the foregoing language, a baccalaureate degree in a specific 
specialty is not the only avenue to a construction manager position. Work experience in the construction 
industry can substitute for a formal education. While a bachelor's degree in a construction-related 
specialty may be increasingly favored by large companies, it is not an industry standard for entry into the 
occupation. 
Based on the foregoing information, the AAO determines that a baccalaureate degree in a specific 
specialty is not the normal minimum requirement for entry into a construction manager position, as 
required for the proffered position to meet the first alternative criterion of a specialty occupation at 
8 C.F.R. Q 214.2(h)(4)(iii)(A)(I). 
As for the second alternative criterion of a specialty occupation, no evidence has been submitted that a 
bachelor's degree in industrial engineering, construction management, or a related specialty is common to 
the industry in parallel positions among similar organizations. Nor does the record establish that the 
proffered position is so complex or unique that it can only be performed by an individual with a 
bachelor's degree in a specific specialty. Thus, the proffered position does not qualify as a specialty 
occupation under either prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The proffered position does not qualify as a specialty occupation under the third alternative criterion of a 
specialty occupation, at 8 C.F.R. Q 214.2(h)(4)(iii)(A)(3), because the evidence of record does not include 
a hiring history for the proffered position demonstrating that the petitioner normally requires a 
baccalaureate or higher degree in a specific specialty, or its equivalent, for the position. 
Lastly, the proffered position does not qualify as a specialty occupation under the fourth alternative 
criterion, at 8 C.F.R. Q 214.2(h)(4)(iii)(A)(4), because the record does not establish that the duties of the 
position are so specialized and complex that the knowledge required to perform them is usually associated 
with a baccalaureate or higher degree in industrial engineering, construction management, or a related 
specialty. The AAO is not persuaded, based on the documentation of record, that the duties of the 
position could not be performed by an experienced individual with less than baccalaureate level 
knowledge in a specific specialty. 
Thus, the proffered position does not qualify as a specialty occupation under any of the criteria 
enumerated at 8 C.F.R. Q 214.2(h)(4)(iii)(A). 
Counsel maintains on appeal that Firstland International v. INS, 377 F.3d 127 (2nd Cir. 2004) prevents 
CIS from revoking the current petition, as the court in that case ruled that CIS did not have the authority 
to revoke a prior approval of a visa petition when the beneficiary is already in the United States. The 
Firstland decision involved an interpretation of section 205 of the Act, 8 U.S.C. Q 1155, which gives the 
Attorney General the discretionary authority to revoke immigrant petitions. The Form 1-129 petition in 
this case is for a nonirnmigrant worker, and the revocation provision of section 205 of the Act does not 
govern this proceeding. The instant revocation is guided by the regulation at 8 C.F.R. Q 214.2(h)(ll). 
Thus, Firstland is not applicable in this case. 
. WAC 02 220 54035 
Page 8 
The director also implicitly determined that the beneficiary was ineligible for H-1B classification because 
he could not speak English and did not know sufficient details of the job at a consular interview in China. 
The record does not reflect that the beneficiary was interviewed for a visa in China. Accordingly, the 
record does not establish that the beneficiary is not qualified for the position. 
As previously discussed, however, the petition may not be approved because the proffered position does 
not qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A). The petitioner has not 
established that the beneficiary will be coming temporarily to the United States to perform services in a 
specialty occupation, as required under section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 3 1101 
(a)(lS)(H)(i)(b). The petition was properly revoked under 8 C.F.R. 214.2(h)(l l)(iii)(5). 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
revoking the petition. 
ORDER: The appeal is dismissed. The petition is revoked.