dismissed H-1B Case: Language Instruction

U.S. Department of Homdand Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LDI 04 053 5 1628 Office: NEBRASKA SERVICE CENTER 7 ~nn~ Date: 63 :" 2 iej(&J 
IN RE: Petitioner: 
Beneficiary: 
PETBTION: Petition for a Wonimmigrant Worker Pursuant to Section 10 l(a)(l 5)(H)(i)(b) of the 
immigration and Nationality Act, 8 U.S.C. 9 1 10 1(a)(l S)(H)(i)(b) 
ON BEHflLF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. AIE documents 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 
EN 04 053 51628 
Page 2 
DISCUSSION: The service center director denied the nonimmigsant 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 private, for-profit business that provides Spanish language instruction. It seeks to employ 
the beneficiary as a foreign language instructor. The petitioner endeavors to classify the beneficiary as a 
nonimmigpant worker in a specialty occupation pursuatlt to § 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence, including letters and affidavits. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(1), defines the term "specialty occupation'hs 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 occupatio~i in the United States. 
Fursuant 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; 
(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 co~nplex 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 additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-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 foreign language instructor. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's November 25, 2003 letter in support of the 
CIN04053 51628 
Page 3 
petition; and the petitioner's response to the director-s request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: teaching Spanish to high school students, business executives, 
healthcare workers, police and fire department personnel, and others in the community. The petitioner 
indicated that a qualified candidate for the job would possess a bachelor's degree. 
The director found that the proffered position, which is similar to an adult literacy or self-enrichment 
education instructor, was not a specialty occupation. Citing to the Department of Labor's Occzqatisnal 
Ozltlook Handbook (Handbook), 2002-2003 edition, the director noted that the minimum requirement for 
entry into the position was not a baccalaureate degree or its equivalent in a specific specialty. The director 
also found that the record contains misrepresentations, namely that the petitioner provided no contract with 
the CarmeP, Bn~diana public school system to verify the claimed business relationship, and the contract for St. 
Luke Catholic School stipulated someone other than the beneficiary as the instructor. The director found 
further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 5 214,2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner has satisfied all of the criteria of 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). According to counsel, a review of the Handbook finds that at least a bachelor's degree is 
required for adult literacy teachers. Counsel states further that the proffered position is so co~nplex and unique 
that it can be performed only by an individual with a degree. Counsel also states that the petitioner norrnally 
req~nires that its teachers hold a bachelor's degree, and the proposed duties are so complex as to require a 
bachelor's degree. Counsel additionally states that the record contains no misrepresentations, that the 
petitioner never indicated that it had a contract with the public school system in Carmel, Indiana, and the 
contract with St. Luke Catholic School stipulates one specific instructor by name because at the time the 
contract was signed, the petitioner had no other available teachers to fulfill the contractual requirements. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 2 14.2(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. 5 214.2(h)(4)(iii)(A)o 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 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 ind~lstry attest that such fims 
"routinely employ and recruit only degreed individuals." See Shunti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999)(quoting Hi~d/Blaker Cory. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educahio~lal requirements 
of particular occupations. The AAO does not concur with counsel that the proffered position is a specialty 
occupation. A review of the Adult Literacy and Remedial and Self-Enrichment Education Teachers job 
descriptions in the Handbook coilfirms the accuracy of the director's assessment to the effect that, the job 
duties parallel the responsibilities of an adult literacy or self-enrichment education teacher. No evidence in the 
Handbook indicates that a baccalaureate or higher degree, or its equivalent, is required for such positions in a 
private business. 
&IN 04 053 51428 
Page 4 
Although counsel asserts that the petitioner never had a contract with the Carmel, Indiana public school 
system, and did not indicate that it had such a contract, the record contai~ls a document entitled "Current 
Contracts for Language Services," which does list "Carmel High School 'Booster Groups' and Private 
Tutoring." Counsel indicates on appeal that it offers private tutoring and intensive Spanish classes for teenage 
high school students in the Car~neP, Indiana community. The petitioner has overcome the concern of the 
director that there are inconsistencies in the record with respect to the petitioner's providing services to 
Carmel, Indiana high school students. 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
aPso 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, therefore, 
has not established the criteria set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(il) or (2). 
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that aPI of the petitioner's employees hold 
degrees. CIS must examine the ultimate employment of the alien, and determine whether the position qualifies 
as a specialty occupation, regardless of the petitioner's past hiring practices. CJ: Defensor v. Meissner, 201 F. 
3d 384 Cir. 2000). The critical element is not the title of the position or 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 minirnnm for entry into the occupation as required by the kt.' In this regard, the petitioner fails to 
establish that the foreign language instructor position it is offering to the beneficiary entails the theoretical 
and practical application of a body of highly specialized knowledge. 
Finally, the AAO turns to the criterion at 8 C.F.R. $ 214,2(h)(4)(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, the duties do not appear 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. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. $ 2 14.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's deniai ofthe petition. 
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. 
OmEWa The appeal is dismissed. The petition is denied. 
' The court in Defensor v. Meissner observed that thc four criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might aPso be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387.