dismissed H-1B Case: Landscaping

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LW 04 184 5 195 1 Office: NEBRASKA SERVICE CENTER Date: FCp 3 3 /qflF 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l5)(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 
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Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a landscaping company. It seeks to employ the beneficiary as a training and 
development specialist and to classify him as a nonirnmigrant worker in a specialty occupation pursuant to 
section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101 
(a)( 15>(H)(i>(b>. 
The director denied the petition on the ground that the record did not establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) 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. 
As provided in 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: 
(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. 
5 214.2(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 of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
decision; and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record 
in its entirety before issuing its decision. 
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In its initial submissions, including Form 1-129 and an accompanying letter, the petitioner described itself 
as a company that provides a variety of landscaping services - including design, construction, 
maintenance and irrigation systems - to customers such as offices, industrial and retail customers, and 
condohome owner associations. The petitioner stated that it had 200 employees, gross annual income of 
$17.3 million, and proposed to hire a training and development specialist to "plan, organize and oversee a 
wide range of training activities. The duties of the position were described as follows: 
[The beneficiary] will provide new employees with orientation programs and coordinate 
job training. He will assist current employees with maintaining and improving their job 
skills. Further, he will prepare achieving employees with training opportunities to attain 
higher level positions requiring greater skills. He will work with supervisors to improve 
their interpersonal skills to achieve a more effective workforce. As necessary, [the 
beneficiary] will conduct individual training programs for current employees to 
strengthen current skill[s] or teach a new technique. He will plan and develop new 
training programs by assessing current programs and determining areas of weakness and 
developing a new training program that will improve the situation and further provide a 
more efficient working environment. Finally, [the beneficiary] will develop the 
necessary training materials, such as instruction and maintenance manuals and handouts, 
needed in conjunction with our training programs. 
According to the petitioner the proffered position required a bachelor's degree in arts, human resources, 
or personnel administration. The beneficiary has a teacher of modem languages degree from the 
Universidad del Valle in Colombia, granted on November 17, 2000, and a master of arts degree in 
Spanish from the University of Cincinnati, granted on June 13,2003. 
In response to the RFE the petitioner provided a more detailed description of the proffered position's 
duties, listing them as follows: 
Provide all new employees with orientation programs including assisting the Spanish 
speaking employees in obtaining the proper tools to understand the various cultural 
differences they will face in the United States. 
Prepare all of the various training materials to insure absolute compliance with the safety 
aspects of the equipment. 
Coordinate job training, by assessing the new employees' landscaping skill levels and 
determining where their skills would be best utilized. 
Coordinate with various department heads and organize a schedule for the new employee[s] 
to follow to obtain the necessary training including providing classroom instruction and 
written training materials for all phases of the job functions. 
Assist in the evaluations of job performance with department heads including documenting 
each employee's progress, or lack thereof, and provide appropriate training as necessary 
including the scheduling of additional training sessions in areas of weakness. Determine 
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which employees are excelling and make promotional recommendations to supervisors and 
department heads. Arrange the necessary training for new job promotions. 
Plan and develop new training programs, as warranted by introduction of new landscaping 
equipment, coordinate training with company supervisor, determine which employees will 
use the new equipment, and work with department supervisor to ensure the employees 
receive the necessary training. 
Communicate with all employees on new company policies, such as changes in insurance, 
work environment policies with regard to safety and proper use of company products, and 
provide verbal and written instructions to employees to assist them in understanding changes. 
Prepare written materials regarding various training programs, work environment safety 
issues, and employee handbook. 
In accord with the petitioner's own classification of the proffered position, the director determined that 
the duties of the position reflected those of a human resources specialist, as described in the Department 
of Labor (D0L)'s Occupational Outlook Handbook (Handbook). The information in the Handbook, the 
director declared, indicated that a bachelor's degree in a specialized field of study is not the normal, 
minimum, industry-wide standard for entry into the occupation of human resource specialist. Nor did 
another DOL resource referenced by the petitioner - the Dictionary of Occupational Titles (DOT) - 
indicate that a baccalaureate degree is required for the proffered position. The evidence of record did not 
establish that a degree requirement is common to the petitioner's industry in parallel positions among 
similar organizations, the director determined, or that the petitioner has a history of normally requiring a 
specialty degree for the position. 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 counsel asserts that the director erred in finding that a bachelor's degree in a specialized field 
of study is not a normal, minimum, industry-wide requirement for entry into the proffered position. 
According to counsel, the complex nature of the duties - including the need for bilingual competence in 
English and Spanish - requires an individual with a specialty degree like the beneficiary's. Counsel 
asserts that both the Handbook and the DOT indicate that a baccalaureate degree in a variety of 
disciplines is required for entry into the human resources field, and that any particular position - like that 
involved in the instant petition - may require a degree in a narrower range of disciplines. According to 
counsel, job announcements in the record from other companies advertising training specialist positions 
indicate that a bachelor's degree in education is a possible minimum educational requirement for the 
position. In addition, counsel states that the duties of the proffered position were performed in the past by 
two employees with a bachelor of arts in Spanish and a bachelor of arts in speech communication together 
with a master of arts in Spanish and Latin American literature, thus demonstrating that the petitioner has a 
history of requiring a specialty degree for the position. 
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 
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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 HircUBlaker 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 petitioner's description of the proffered position's duties accords with the Handbook's description of 
training and development managers and specialists, which is a sub-category of the Harzdbook's broad 
occupational category of "human resources, training, and labor relations managers and specialists." 
Reflecting the broad range of positions within the occupational category, educational requirements for 
such positions also vary. As explained in the Handbook, 2004-05 edition, at page 49: 
Because of the diversity of duties and levels of responsibility, the educational 
backgrounds of human resources, training, and labor relations managers and specialists 
vary considerably. In filling entry-level jobs, many employers seek college graduates 
who have majored in human resources, personnel 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 . . . . 
Because an interdisciplinary background is appropriate in this field, a combination of 
courses in the social sciences, business, and behavioral sciences is useful. Some jobs 
may require a more technical or specialized background in engineering, science, finance, 
or law, for example . . . . 
An advanced degree is increasingly important for some jobs. Many labor relations jobs 
require graduate study in industrial or labor relations. A strong background in industrial 
relations and law is highly desirable for contract negotiators, mediators, and arbitrators; 
in fact, many people in these specialties are lawyers. A background in law also is 
desirable for employee benefits managers and others who must interpret the growing 
number of laws and regulations. A master's degree in human resources, labor relations, 
or in business administration with a concentration in human resources management is 
highly recommended for those seeking general and top management positions. 
Based on the foregoing information, the AAO determines that a bachelor's degree in a specific specialty 
is not the normal minimum requirement for entry into a training and development specialist position. 
While a bachelor's degree in some field does appear to be a minimum requirement, the varying examples 
in the Handbook indicate that the area of desired educational specialty depends on such factors as the 
nature of the hiring entity, its line of business and scale of operations, and the complexity of its 
organizational structure. Thus, different employers look for different educational credentials in hiring 
entry-level training and development specialists, and some look simply for "a well-rounded liberal arts 
education." Because a broad range of educational backgrounds is acceptable for entry into the 
occupation, the AAO concludes that a baccalaureate or higher degree in a specific specialty is not the 
normal minimum requirement for entry into the proffered position. Accordingly, the position does not 
meet the first alternative criterion of a specialty occupation, set forth in 8 C.F.R. 5 214.2 (h)(4)(iii)(A)(l). 
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On appeal counsel refers to the DOT, supra, which rates training specialists as an occupation with an SVP 
("specific vocational preparation") of level 8. According to counsel that means the occupation requires a 
bachelor's degree in a specialty field, as determined by the particular job. The DOT, however, is not a 
persuasive source of information about whether a particular job requires a baccalaureate or higher degree 
in a specific specialty, or its equivalent, as a minimum for entry into the occupation. An SVP rating is 
meant to indicate the total number of years of vocational preparation required for a particular position. It 
does not specify how those years are to be divided among training, formal education, and experience, and 
it does not specify the particular type of degree, if any, that a particular position would require. Thus, the 
DOT does not establish that a baccalaureate or higher degree in a specific specialty is required for entry 
into a training specialist position. 
With respect to the second alternative criterion of a specialty occupation, set forth in 8 C.F.R. 3 214.2 
(h)(4)(iii)(A)(2), the record includes a series of internet job announcements for training specialist 
positions. While all of the announcements indicate that a baccalaureate degree is required, there is no 
commonality with respect to an area of specialization. While a majority of the advertisements list several 
specialty areas that would be appropriate, some indicate only that a bachelor of arts degree is required, 
without indicating any particular specialty. These advertisements corroborate the information in the 
Handbook that a broad range of degrees is acceptable for entry into the position. None of the advertising 
organizations is in the same line of business as the petitioner, and none of the advertisements provides 
any information about the organization's size and scale of operations relative to the petitioner. The AAO 
concludes, therefore, that the internet job announcements are not persuasive evidence that a degree 
requirement in a specific specialty is common to the petitioner's industry in parallel positions among 
similar organizations, as required for the proffered position to qualify as a specialty occupation under the 
first prong of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2). Nor does the record show that the training and 
development specialist position is so complex or unique that it can only be performed by an individual 
with a baccalaureate degree in a specific specialty, as required for the position to qualify as a specialty 
occupation under the second prong of 8 C.F.R. ij 214.2(h)(4)(iii)(A)(2). 
As for the third alternative criterion of a specialty occupation, at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), counsel 
asserts that prior to the creation of the proffered position, training and development duties were 
performed by one individual with a baccalaureate degree in Spanish and another individual with a 
baccalaureate degree in speech communication with a minor in Spanish and a master of arts in Spanish 
and Latin American literature. No documentary evidence has been submitted of those educational 
degrees, however, or that either individual currently or previously worked for the petitioner. Simply 
going on record without supporting documentation does not satisfy the petitioner's burden of proof. See 
Matter of SofSici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornrn. 1972)). Moreover, the employer's acceptance of a variety of liberal arts 
degrees for the position, rather than requiring a human resources background, is further indication that it 
does not require a degree in a specific specialty and that the position, therefore, is not a specialty 
occupation. See Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Cornm. 1988). The AAO 
determines that the record fails to establish that the petitioner normally requires a specialty degree or its 
equivalent for the training and development specialist position, as required for the position to qualify as a 
specialty occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3). 
Finally, the record does not establish that the duties of the training and development specialist are so 
specialized and complex that the knowledge required to perform them is usually associated with a 
" LIN04 18451951 
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baccalaureate degree in a specific specialty. Based on the information in the Handbook and the evidence 
of record - including the petitioner's line of business, scale of operations, and description of the proffered 
position - the AAO concludes that the duties of the position could be performed by an experienced 
individual without baccalaureate level knowledge in a specific specialty. Thus, the proffered position 
does not meet the fourth alternative criterion of a specialty occupation at 8 C.F.R. 5 214.2 
(h)(4)(iii)(A)(4). 
For the reasons discussed above, the record fails to demonstrate that the proffered position meets any of 
the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A) to qualify as a specialty occupation. 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 10l(a)(l5)(H)(i)(b) of the Act, 
8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. $5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.