dismissed H-1B Case: Jewelry

If.S, Department of Homeland Security
20 Massachusetts Avenue, NW, Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigratton
Services
PUBLICCOpy
FILE:
INRE:
SRC·04 088 51256
Petitioner:
Beneficiary:
Office: TEXAS SERVICE CENTER Date: JUl 282006
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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
www.uscls.gov
SRC 04088 51256
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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 custom jewelry repair and design store that seeks to employ the beneficiary as a
production manager. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 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 is not a specialty occupation. Counsel
submitted a timely Form 1-290B on December 17, 2004 and indicated that he would be submitting a
separate brief or evidence within 30 days. On April 19, 2006, the AAO sent counsel a fax requesting a copy
of the brief or evidence that had been submitted. Counsel did not reply. Therefore, the record is complete.
Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(1), 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.
Pursuant to 8 C.F.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 mmimum
requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar
organizations Of, 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.
§ 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.
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The record of proceeding before the AAO contains: (1) 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) Form 1-290B and supporting documentation. The AAO reviewed the record
in its entirety before issuing its decision.
The petitioner is seeking the beneficiary's services as a production manager. Evidence of the beneficiary's
duties includes: the 1-129 petition; the petitioner's January 29, 2004 letter in support of the petition; and the
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary
would perform duties that entail: overseeing the design and production of jewelry by jewelers; overseeing
the setting of the stones; overseeing the operation and maintenance of equipment and tools; overseeing the
engraving of jewelry, such as rings and bracelets; managing the finances and purchasing supplies for the
store; hiring and training all of the jewelers and other employees of the jewelry store; being responsible for
quality control of the jewelry that is designed, manufactured and repaired in the store; designing and
implementing processing schedules and production orders to determine staffing requirements, work
procedures and duty assignments; preparing and maintaining production reports and personnel records; and
initiating and coordinating inventory and cost control programs. The petitioner indicated that a qualified
candidate for the job would possess a bachelor's degree or its equivalent in general jewelry studies or a
related field.
The director found that the proffered position was not a specialty occupation. The director found further
that the petitioner failed to establish any of the criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A).
On appeal, counsel states that the beneficiary has been approved twice before for positions "involving the
same specialty occupation petition. The job descriptions have been identical." Counsel states that in the
absence of gross error, CIS must follow its prior decisions.
The director's decision does not indicate whether she reviewed the pnor approvals of the other
nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the same
unsupported and contradictory assertions that are contained in the current record, the approvals would
constitute material and gross error on the part of the director. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied,
485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th
Cir. 2001), cert.denied, 122 S.Ct. 51 (2001).
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The prior approvals do not preclude CIS from denying an extension of the original visa based on a
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004
WL 1240482 (5th Cir. 2004).
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R.
§ 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation.
The AAO turns first to the criteria at 8 C.F.R. § 214.2 (h)(4)(iii)(A)(1) and (2): a baccalaureate or higher
degree or its equivalent is the normal minimum requirement for entry into the particular position; 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 often considered by CIS when determining these criteria include: whether the Department of
Labor's Occupational Outlook Handbook (Handbook) reports that 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 1151, 1165 (D. Minn. 1999) (quoting
Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989».
The AAO routinely consults the Handbook for its information about the duties and educational
requirements of particular occupations. The petitioner has identified its position as that of a production
manager, but its description of the beneficiary's duties does not reflect the complexity of duties of an
industrial production manager. Instead, the duties are those of a jeweler combined with those of a general
manager.
The Handbook entry on jewelers states: "In small retail stores or repair shops, jewelers and appraisers may
be involved in all aspects of the work. Those who own or manage stores or shops also hire and train
employees; order, market, and sell merchandise; and perform other managerial duties ... Jewelers usually
learn their trade in vocational or technical schools, through distance-learning centers, or on the job."
General managers are described in the Handbook in the entry for top executives:
General and operations managers plan, direct, or coordinate the operations of companies
or public and private sector organizations. Their duties include formulating policies,
managing daily operations, and planning the use of materials and human resources, but are
too diverse and general in nature to be classified in anyone area of management or
administration, such as personnel, purchasing, or administrative services.
The Handbook states, "The formal education and experience of top executives varies as widely as the nature of
their responsibilities. Many top executives have a bachelor's or higher degree in business administration or
liberal arts." This indicates that a baccalaureate or higher degree, or its equivalent, in a specific specialty is not
required for a top managerial job.
SRC 04088 51256
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Regarding parallel positions in the petitioner's industry, the petitioner submitted numerous position listings
from an Internet employment site, as well as copies of the description from the Handbook and the
Department of Labor's Occupational Information Network (O*Net) for production managers. As noted
previously, the AAO does not find that the duties of the proffered position are those of a production
manager, therefore, the information submitted does not relate to the actual duties the beneficiary would
perform. The petitioner also submitted a letter used by another jeweler for the same beneficiary in its
petition for a production manager (Exhibit 7 of the response to the director's request for evidence). It states
that a bachelor's degree is required for the position, but it does not indicate that the degree must be in a
specific specialty. As noted above, CIS interprets the term "degree" in the criteria at 8 C.F.R.
§ 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 does not include any evidence from professional associations regarding an industry standard, or
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus,
not established the criteria set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) or (2).
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer nonnal1y requires a
degree or its equivalent for the position. This is a new position and the petitioner is not able to meet this
criterion.
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(iii)(A)(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.
To the extent that they are depicted in the record, and combined with the evidence of record, the duties do
not appear to be so specialized and complex as to require the highly specialized knowledge associated with
a baccalaureate or higher degree, or its equivalent, in a specific specialty. The petitioner indicates that the
beneficiary will oversee the design and production ofjewelry by jewelers; oversee the setting of the stones;
oversee the operation and maintenance of equipment and tools; and oversee engraving of jewelry, such as
rings and bracelets. The petitioner indicates on the Form 1-129 that it is a custom design and repair store,
with four employees. The record does not reflect how many of the four employees are jewelers, how
extensive and/or complex the production equipment is, or the procedures for setting the stones that the
beneficiary will oversee. Going on record without supporting documentary evidence is not sufficient for
purposes of meeting 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».
Therefore, the evidence does not establish that the proffered position is a specialty occupation under 8
C.F.R. § 214.2(h)(4)(iii)(A)(4).
Therefore, for the reasons related in the preceding discussion, 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.
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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 not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.