dismissed H-1B Case: Industrial Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
identieing data deleted to 
prevent clearly unwarranted 
invasion of penonal pivacy 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 04 255 5281 5 Office: CALIFORNIA SERVICE CENTER Date: 2 9 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 10 l(a)( 1 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, Chief 
Administrative Appeals Office 
WAC 04 255 52815 
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DISCUSSION: The director of the California Service Center 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 manufacturer of women's clothing, with 12 employees. It seeks to employ the beneficiary 
as an industrial engineer to implement quality control measures concerning its manufacturing and assembly- 
related activities. The director denied the petition because he determined the petitioner had failed to establish 
its proffered position as a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) the petitioner's response to the director's request; (4) the director's denial 
letter; and (4) Form I-290B, with counsel's brief. The AAO reviewed the record in its entirety before 
reaching its decision. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meet its burden of proof in this regard, the petitioner must establish that the job it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
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. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An 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; 
(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 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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor 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 entry into the occupation as required by the Act. 
The petitioner seeks the beneficiary's services as an industrial engineer. Evidence of the beneficiary's duties 
includes: the Form 1-129; the petitioner's August 25, 2004 letter in support of the Form 1-129 and its 
November 29, 2004 response to the director's request for evidence. These descriptions indicate the 
beneficiary would have responsibility for: 
Developing standardized manufacturing methods customized to make optimum use 
of machinery, labor utilization standards and facility utilization through the 
implementation of cost analysis production, scheduling and human-work relation job 
evaluatory programs; 
Providing the petitioner with time analysis studies in relation to current processes 
involving the manufacture of women's clothing; 
Designing equipment that will increase production levels; 
Documenting workspace for maximum efficiency of workflow; 
Reviewing project instructions and blueprints to ascertain when certain types of 
manpower and machinery standards should be applied; 
Reviewing manufacturing specifications, order compliance and other related 
information; 
Studying operations sequencing and material flow so as to provide the petitioner with 
detailed estimations of production costs, as well as the effectiveness of product 
design changes, including labor and material costs; and 
Evaluating product data and design performance to specific industrial engineering 
principles, customer requirements and quality standards. 
The petitioner further asserted that the above duties are critical to its efforts to upgrade its production facilities 
and increase its staff in response to heavy demand for its products, and require a baccalaureate degree in 
industrial/mechanicaI engineering, management engineering or a related field. 
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To make its determination whether the employment just described qualifies as a specialty occupation, the 
AAO turns to the criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry into the particular position; and 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 considered by the 
AAO when determining these criteria include: whether the Department of Labor's (DOL) Occupational 
Outlook Handbook (Handbook), on which the AAO routinely relies for the educational requirements of 
particular occupations, reports 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. Sava, 7 12 F. Supp. 1095, 
I 102 (S.D.N.Y. 1989)). 
In his denial, the director concluded, in part, that the petitioner's business did not have operations of the scale 
or complexity to require the services of a full- or part-time industrial engineer. The director's decision does 
not, however, indicate the basis on which he reached this conclusion, nor is it supported by the Handbook's 
discussion of the occupation of engineers. Accordingly, the AAO withdraws the director's finding in this 
regard. 
The petitioner has stated its proffered position is that of an industrial engineer. Therefore, the AAO has 
reviewed the duties described by the petitioner in relation to the 2006-2007 DOL Handbook's discussion of 
the occupation of engineer, which includes a specific section on the work of industrial engineers. As 
indicated by the Handbook's general discussion of the engineering profession at pages 133-134: 
Engineers apply the theories and principles of science and mathematics to develop 
economical solutions to technical problems . . . . 
In addition to design and development, many engineers work in testing, production, or 
maintenance. These engineers supervise production in factories, determine the causes of 
component failure, and test manufactured products to maintain quality. They also estimate 
the time and cost to complete projects . . . . 
At page 135, the Handbook offers the following description of the work of industrial engineers: 
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 mostly concerned with increasing productivity through the management of 
people, methods of business organization, and technology. To solve organizational, 
production, and related problems efficiently, industrial engineers carefully study the product 
requirements, use mathematical methods to meet those requirements, and design 
WAC 04 255 5281 5 
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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, as well as determine the most efficient plant 
locations. Industrial engineers develop wage and salary administration systems and job 
evaluation programs. Many industrial engineers move into management positions because 
the work is closely related to the work of managers. ' 
On appeal, counsel notes that the petitioner's description of the proffered position is "similar to the wording" 
of the Handbook S discussion of the occupation of industrial engineer, a similarity he asserts establishes the 
proffered position as an industrial engineer. While the AAO agrees that the proffered position's duties, as 
listed by the petitioner, reflect the work performed by industrial engineers, it does not find them to establish 
the proffered position as a specialty occupation. 
A petitioner cannot establish a proffered position as a specialty occupation by listing the duties of that 
employment in the same general terms as those used by the Handbook in discussing an occupational title. 
While this type of generalized description is necessary when defining the range of duties that may be 
performed within an occupation, it cannot be relied upon by a petitioner when discussing the duties attached 
to specific employment. In establishing a position as a specialty occupation, a petitioner must describe the 
specific duties or tasks to be performed by a beneficiary in relation to its particular business interests. In the 
instant case, the petitioner refers to the beneficiary's responsibilities for designing equipment, developing 
standardized manufacturing methods, providing time and analysis studies and studying operating sequencing 
and material flow, but fails to relate any of these duties to its own clothing operations. 
The AAO, as previously discussed, requires information regarding the actual responsibilities of a proffered 
position to make its determination regarding the nature of the position and its degree requirements, if any. 
See Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). Without such information, the AAO is unable to 
determine the tasks to be performed by a beneficiary on a day-to-day basis and, therefore, whether a proffered 
position's duties are of sufficient complexity to require the minimum of a baccalaureate degree or its 
equivalent. As the record in the instant case offers no meaningful description of the proffered position's 
responsibilities, the petitioner has failed to establish the proffered position as a specialty occupation under the 
first criterion at 8 C.F.R. fj 214,2(h)(4)(iii)(A)(l) - a baccalaureate or higher degree or its equivalent is 
normally the minimum requirement for entry into the particular position. 
In reaching this conclusion, the AAO has considered the evidence of record that could potentially establish 
the proffered position as a specialty occupation under the first criterion - the materials related to the 
occupation of industrial engineers from the DOL Occupational Information Network (O*Net), which has 
replaced the Dictionary of Occupational Titles (DOT); and the opinions of professors from the University of 
Arizona and the State University of New York at Buffalo regarding the degree requirements for industrial 
engineers and the proffered position. 
The O*Net materials indicate that a baccalaureate degree is required for employment as an industrial 
engineer. While the AAO agrees that an industrial engineer qualifies as a specialty occupation, it does not find 
WAC 04 255 52815 
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the record to establish the proffered position as that of an industrial engineer. Accordingly, the O*Net 
materials submitted by the petitioner regarding the occupation of industrial engineer are not probative for the 
purpose of these proceedings. Moreover, the O*Net is not a persuasive source of information as to whether a 
job requires the attainment of a baccalaureate or higher degree (or its equivalent) in a specific specialty. It 
provides only general information regarding the tasks and work activities associated with a particular 
occupation, as well as the education, training, and experience required to perform the duties of that 
occupation. The education and training codes assigned to occupations by the O*Net do not indicate a degree 
requirement in a specific specialty, as required for classification as a specialty occupation. 
The opinions of the two university professors also fail to establish the proffered position as a specialty 
occupation under the first criterion. Both individuals claim expertise in the field of industrial engineering and 
indicate that their opinions are based on the description of the "industrial engineering position" in the 
petitioner's August 25, 2004 letter of support. They conclude that the proffered position requires the 
beneficiary to hold a degree in industrial engineering, industrial management, civil engineering or a related 
field. However, as previously discussed, the outline of the position provided by the petitioner in its letter of 
support is so generalized that it describes the occupation of industrial engineer rather than the duties to be 
performed by the beneficiary in relation to the petitioner's apparel manufacturing business. As the 
professors' opinions are based on a list of responsibilities that does not provide a meaningful description of 
the proffered position in relation to the petitioner's apparel business, they do not establish it as that of an 
industrial engineer, employment that would impose a degree requirement on the beneficiary. The AAO may, 
in its discretion, use as advisory opinions statements submitted as expert testimony. Where an opinion is not 
in accord with other information or is in any way questionable, the AAO is not required to accept it or may 
give it less weight. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
To establish the position as a specialty occupation under the second criterion - a specific degree requirement 
is common to the industry in parallel positions among similar organizations or that the proffered position is so 
complex or unique that it can be performed only by an individual with a degree in the specific specialty - the 
petitioner has submitted 17 Internet job announcements for industrial engineers and the previously-discussed 
opinions from the University of Arizona and State University of New York professors. However, the 
advertisements and the opinions do not satisfy either of the criterion's alternate prongs. 
None of the advertisements indicate they are published by organizations similar to the petitioner, a clothing 
manufacturer. Instead, they represent the employment needs of manufacturers of pharmaceuticals, shower 
valves, car body systems, caskets, electronic sensors, automotive products, food, and recreational products; 
healthcare companies; technology firms and two organizations that do not identify their business. Further, as 
the petitioner has not provided a specific listing of the duties of the proffered position, it is not possible to 
determine whether the positions described are parallel to it. Accordingly, the announcements fail to establish 
a degree requirement in parallel positions among similar organizations. 
The opinion from the professor at the State University of New York at Binghamton addresses his credentials 
and the degree requirement for the duties of the position as listed on the August 25, 2004 letter of support, not 
industry practice. The opinion of the University of Arizona professor states only that it is "quite common for 
any type of manufacturing company to hire Industrial Engineers," not that it is common for small clothing 
WAC 04 255 52815 
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manufacturers like the petitioner to do so. Therefore, they, too, fail to establish the petitioner's degree 
requirement within its industry. Moreover, the AAO notes that the record does not establish the authority of 
either professor to speak to hiring practices in the apparel manufacturing industry. The petitioner has 
submitted no evidence that demonstrates that either individual is knowledgeable about the hiring practices of 
U.S. clothing manufacturers and neither professor cites to industry surveys, trade publications or other trade 
data in support of his conclusion. Going on record without supporting documentation is not sufficient to meet 
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 also concludes that the record before it does not establish the proffered position as a specialty 
occupation under the second prong at 8 C.F.R. § 214.(h)(4)(iii)(A)(2) - the position is so complex or unique 
that it can be performed only by an individual with a degree - despite the opinions expressed in the letters 
from the Arizona and New York professors. While both individuals find that the proffered position could be 
performed only by an individual with an engineering or related degree, their conclusions are, again, based on 
their respective readings of the duties described in the petitioner's August 25, 2004 letter, duties that describe 
the occupation of industrial engineer rather than the actual duties of the proffered position. Accordingly, the 
AAO finds the professors7 opinions to be of little evidentiary value in establishing the proffered position as a 
specialty occupation based on its complexity or unique nature. Matter of Caron International, 19 I&N Dec. 
791 (Comm. 1988). Having failed to submit a meaningful description of the proffered position, the petitioner 
is precluded from establishing it as either complex or unique. 
On appeal, counsel states that CIS' denial failed to provide "expert testimony" disputing the professors' 
conclusions and that, in the absence of such evidence, their opinions must be accepted as true. Counsel has 
mistakenly shifted the burden of proof in these proceedings. It is the responsibility of the petitioner or 
applicant to establish eligibility for the benefit sought. Section 291 of the Act, 8 U.S.C. 5 1361. Pursuant to 
8 C.F.R. 5 103.3(a)(l)(i), CIS is required only to explain its reasoning in denying an application or petition. 
The AAO next considers the criteria at 8 C.F.R. 5 214.2(h)(A)(3) and (4): the employer normally requires a 
degree or its equivalent for the position; and the nature of the specific duties is so specialized and complex 
that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate 
or higher degree. 
To determine a petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the employment histories, including names and dates of employment, of 
those employees with degrees who previously held the position, and copies of those employees' diplomas. In 
the instant case, the petitioner has not attempted to establish the proffered position as a specialty occupation 
based on its normal hiring practices. Neither is there any evidence in the record that would indicate that the 
petitioner has previously filled the proffered position with a degreed individual. Although the petitioner has 
submitted a copy of its job announcements seeking candidates with engineering or related degrees, the 
petitioner's requirements for the instant position are not proof of its hiring practices. Accordingly, the record 
does not establish the position as a specialty occupation based on the petitioner's normal hiring practices. 
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The fourth criterion requires a petitioner to demonstrate that the nature of the specific duties of a proffered 
position is so specialized and complex that the knowledge required to perform them is usually associated with 
the attainment of a baccalaureate or higher degree. On appeal, counsel asserts that the opinions of the 
university professors establish the proffered position as a specialty occupation under the criterion's 
specialized and complex threshold. The AAO does not agree. 
While the two professors indicate that the duties of the proffered position are so technical and detailed that a 
bachelor's degree in an engineering-related field would be required to perform them, both, as previously 
discussed, are based solely on the petitioner's generalized description of the employment of an industrial 
engineer, rather than a description of the specific tasks that would be performed by the beneficiary. 
Accordingly, the professors' opinions of the nature of the duties described by the petitioner offer insufficient 
evidence of their specialization and complexity. The AAO 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 it or may give less weight to that evidence. 
Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). Without a meaningful description of the 
proffered position's duties, a petitioner cannot establish them as being of sufficient complexity and 
specialization to satisfy the requirements at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4). 
The AAO notes that the petitioner claims 12 employees as of the petition filing date of September 20, 2004. 
On its 2003 tax return, it claims $22,500 in compensation paid, $30,239 in total salaries and $61,248 in 
commissions. Thus, it appears that the bulk of the petitioner's employee expenses lies in sales and not in 
manufacturing. The petitioner also paid $140,574 in sewing charges to a third party or parties. Thus, the 
nature of the petitioner's manufacturing operation is not clear from the record. Considering the petitioner's 
failure to provide a detailed specification of industrial engineering duties in relation to its manufacturing 
business, the petitioner has not established that it would employ the beneficiary temporarily in a specialty 
occupation as required by the regulation at 8 C.F.R. 9 214,2(h)(l)(B)(I). 
For reasons related in the preceding discussion, the petitioner has failed to establish that its proffered position 
is a specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The AAO notes that the basis for its decision differs from that relied upon by the director. An application or 
petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the 
Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, 
Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd 345 F.3d 683 (9th Cir. 2003); see 
also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo 
basis). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. 
ORDER: The appeal is dismissed. The petition is denied.