dismissed H-1B Case: Law

Non-Precedent Decision of the 
Administrative Appeals Office 
MATIER OF H-, P.C. DATE: NOV. 28, 2016 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a law firm, seeks to extend the Beneficiary's temporary employment as a "legal 
research & technical writing specialist" under the H -lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
' 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the job offered qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts the proffered position qualifies as a specialty occupation. _/ 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 minirrmm for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter ofH-, P.C. 
(1) 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. 
8 C.P.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "d~gree" 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 proposed 
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will continue to serve as a legal 
research & technical writing specialist. In the support letter, the Petitioner provided the following 
job duties for the position: 
The job duties for the Legal Research and Technical Writing Specialist shall continue 
to focus on writing materials that will be used for publication on the firm's website, 
newsletters, client opinion letters, and memoranda of law both in English and 
Spanish, explaining complex legal matters, procedures, and changes in the law in an 
array of areas including commercial and residential real estate law, corporate law, 
small business law, immigration law, real estate litigation as well as other matters. 
The position requires the beneficiary to organize writing materials in both English 
and Spanish for order, clarity, conciseness, style and terminology, edit the materials 
prepared by other writers, including matters for publication on the firm's website, 
newsletters, client opinion letters and memoranda of law. The beneficiary will also 
prepare PowerPoint presentations for the firm's seminar work, which includes topics 
such as first time home buying, immigration law, landlord tenant disputes, small 
business and corporate law and condominium association management. The position 
also requires the beneficiary to ,research and prepare speeches regarding legal topics 
for radio broadcast for firm marketing and informational radio programs. 
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Matter of H-, P.C. 
The Legal Research and Technical Writing Specialist will write explanatory material 
for an array of topics that are of significant importance for [the Petitioner's] client 
base. These includes "how-to" manuals regarding the formation and management of 
corporations, limited . liability companies and other corporate forms under 
Massachusetts Law, as well as updates to these matters based upon statutory changes 
and impactful case law. In addition,. it will include the drafting of employee 
handbooks and manuals for our small business clients, as well as explanatory 
n;taterials regarding licensing and zoning compliance for small businesses. The 
materials that are not client-specific will be published on the firm's website. These 
materials must also be accessible in both English and Spanish, so that the Legal 
Research and Technical Writing Specialist must be fluent in both English and Spanish 
to effectively perform. The Legal Research and Technical Writing Specialist will 
also write general and case-specific guides designed to assist in keeping our clients 
informed and educated about the legal processes that they are undergoing. These 
materials are designed to educate current and potential clients regarding the legal 
concepts and formal j~dicial procedures involved in a wide variety of cases, and must 
be written in a manner that conveys complex legal concepts and judicial formalities 
that are understandable to the layman. 
The Legal Research and Writing Technical Specialist will also edit and fact check 
materials prepared by other writers, most commonly attorneys in the law firm, who 
prepare written materials for publication, whether on the firm's website, social media, 
newsletter or in third-party publications, such as newspapers, legal journals, websites 
or social media blogs. The position will also require maintaining of records of 
published materials and revisions. 
In addition, the Legal Research and Technical Writing Specialist prepares the written 
speeches and presentations for the seminar work performed by the firm. This will 
include presentation of PowerPoint presentations based on various legal topics. The 
presentation of these topics includes researching the particular areas of law, as well as 
current trends in law and procedure, and the ability to explain those areas of law and 
legal trends in non-technical terms to an audience of non-lawyers. Again, these 
seminars are presented in both English and Spanish, so fluency in both languages is 
essential to the position. 
In response to the Director's request for evidence (RFE), the Petitioner provided the following 
breakdown of time to be spent performing these specific duties: 
• 25% - Researching topics of law, including applicability to the firm's client base, and case 
law and statutory law for accuracy, for one form of publication or another. 
• 50% -.Drafting written materials as well as planning broadcast and presentation materials 
based upon the results of its research. 
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Matter of H-, P.C. 
• 25% -Researching and creating written materials in the form of handbooks, guides or other 
types of explanatory materials for individual clients which are not for general publication or 
distribution. 
The Petitioner stated that the position requires a bachelor's degree in law, English and Spanish 
language fluency, and that "it is important that the individual possess prior practical legal 
experience." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.1 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.2 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(i), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses? 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Technical Writers" 
corresponding to the Standard Occupational Classification code 27-3042.4 The Handbook states the 
following about entry into this occupational category: 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered 
position and its business operations. Whi~e we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wicfe variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in·our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
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Matter of H-, P.C. 
A college degree is usually required for a position as a technical writer. In addition, 
experience with a technical subject, such as computer science, Web design, or 
engineering, is important. 
Education 
Employers general prefer candidate with a bachelor's degree in journalism, English, 
or communications. Many technical writing jobs require both a degree and 
knowledge in a specialized field, such as engineering, computer science, or medicine. 
Web design experience also is helpful because of the growing use of online technical 
documentation. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Technical Writers," http://www .bls.gov /ooh/media -and-communication/technical-writers. htm#tab-4 
(last visited Nov. 28, 2016). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for these positions. To the contrary, while 
the Handbbok states that bachelor's degree in journalism, English, or communications is generally 
preferred," it only states a usual requirement for a "college degree." A "college degree" is not 
necessarily a "bachelor's degree"; the terms are not synonymous.5 As the Handbook states neither 
the type of"college degree" to which it refers (e.g., associate's degree, bachelor's degree, etc.), nor a 
"requirement" for any specific field of study other beyond a general preference for the fields of 
journalism, English, or communications, it does not establish that a bachelor's degree in a specific 
specialty, or the equivalent, is normally required. 
In addition, when comparing the duties of the proffered position to the types of positions located 
within this occupational category, it is important to consider the wage-level the Petitioner designated 
on the LCA. Again, the Petitioner has stated that it will pay the Beneficiary a Level I wage, which 
indicates that the Beneficiary will be expected to perform routine tasks that require limited, if any, 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ll_ 2009.pdf. A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements ofthe Petitioner's job opportunity. Id. 
5 We decline to fmd that DOL intended the terms "college degree" and "bachelor's degree" to be considered 
interchangeable. DOL's own O*Net Summary Report for Technical Writers reported that of individuals working in 
positions located within this occupational category, 35 percent of respondents possessed an associate's degree, and 16 
percent had attended some college but not earned a degree. Thus, according to DOL, a majority of surveyed individuals 
who are employed within this occupational category do not possess a bachelor's degree. U.S. Dep't of Labor, 
Employment & Training Administration, O*Net Online, "Summary Report for 27-3042.00 - Technical Writers," 
http://www.onetonline.org/link/summary/27-3042.00#Education (last visited Nov. 28, 2016). Consequently, we find that 
DOL did not intend to use the terms "college degree" and "bachelor's degree" interchangeably. 
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Matter ofH-, P.C. J 
exercise of judgnient; that he will be closely supervised and his work closely monitored and 
reviewed for accuracy; and that he will receive specific instructions on required tasks and expected 
results. Further, the above-referenced DOL guidance states that a Level I wage should be considered 
when the job offer is for a research fellow, a worker in training, or an internship. Given the 
Handbook's implication that typical positions located within this occupational category do not 
require a bachelor's degree in a specific specialty, we find it unlikely that an entry-level position 
with those characteristics would have such a requirement. 6 
The Petitioner has not established that the proffered position falls within an occupational category 
for which the Handbook, or any other relevant, authoritative source, indicates that the normal 
minimum entry requirement is at least a bachelor's degree in a specific specialty, or the equivalent. 
Consequently, the evidence of record does not support a finding that the particular position proffered 
here, an entry-level position located within. the technical writers occupational category, would 
normally have such a minimum specialty degree requirement, or the equivalent. The duties and 
requirements of the position as described by the Petitioner do not indicate that it is one for which a 
bachelor's or higher degree in a specific specialty, or the equivalent, is normally required. The 
Petitioner therefore has not satisfied !he criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "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[.)" 8 C.P.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 industry attest that such firms "routinely employ 
6 Given the Petitioner's assertions regarding the proffered position and the evidence it submits in their support, its 
foreign-language requirement, and its experience requirement, this wage-level designation on the LCA raises questions 
as to whether the LCA actually corresponds to and supports the H-lB petition. While we will not explore the issue of 
the LCA in depth here, the Petitioner should be prepared to address it in any future H-lB filings because it appears to 
constitute an additional ground of ineligibility. 
6 
(b)(6)
Matter ofH-, P.C. 
and recruit only degreed individuals." See Shanti, Inc. v~ Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quotingHird!Blaker Corp. v. Sava, 712 E Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports an industry-wide requirement for at least a 
bachelor's degree in a specific specialty, or its equivalent. Also, there are no submissions from 
professional associations, individuals, or similar firms in the Petitioner's industry attesting that 
individuals employed in positions parallel to the proffered position are routinely required to have a 
minimum of a bachelor's degree in a specific specialty or its equivalent for entry into those positions. 
Nor is there any other evidence for our consideration under this prong. 
The Petitioner therefore has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of the petition, the Petitioner claims that the Beneficiary is well-qualified for the position, 
and references his qualifications. However, the test to establish a position as a specialty occupation 
is not the education or experience of a proposed Beneficiary, but whether the position itself requires 
at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner submitted four letters of suppprt from organizations that have utilized the services of 
the Petitioner which include the following: (1) (2) 
Director of (3) Executive Director, 
and, ( 4) Manager of Homeownership Services, 
The letters confirm a working relationship with the Petitioner, and each indicated that the written 
materials and presentations provided by the Petitioner are helpful to their clients. The letters state 
that the written materials and presentations provide a step by step process written in layman's terms. 
However, the letters do not specifically identify the duties performed by the Beneficiary, and do not 
provide sufficient evidence to establish that the position is so complex or unique that only a 
specifically degreed individual could perform its duties. 
The work product submitted by the Petitioner has been similarly reviewed. We do not question the 
veracity these materials or their value to the Petitioner and its clients. Nor do we question that their 
preparation required knowledge and expertise. Again, however, they do not establish that the 
proffered position is so complex or unique that it can only be performed by an individual with at 
least a bachelor's degree in a specific specialty, or its equivalent. 
Matter of H-, P.C. 
We discussed the Handbook's findings regarding the occupational category into which the Petitioner 
placed the proffered position above. As noted, the Handbook does not indicate that a bachelor's 
degree in a specific specialty, or the equivalent, is normally required. While the letters and work 
product, as well as the Petitioner's associated claims, are acknowledged, thePetitioner's Level I 
wage designation undermines it significantly. 7 In other words, if typical positions located within the 
occupational category do not require a bachelor's degree in a specific specialty, or the equivalent, 
then it is unclear how a position with the Level I characteristics described above would, regardless of 
the Petitioner's assertions. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§.214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
While the Petitioner's statement in the RFE that the proposed duties were previously performed by 
attorneys, it did not explain the percentage of time those attorneys spent on the duties required of the 
Beneficiary. In any event, the record contains no evidence for our consideration under this criterion. 
Thus, the Petitioner has not satisfied the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner submitted several samples of work product written by the Beneficiary. However, the 
Petitioner does not explain the complexity, uniqueness and/or specialization of the tasks involved in 
producing these materials, and/or the correlation between that work and a need for a particular level 
7 The Petitioner's designation of this position as a Level i, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
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Matter of H-, P.C. 
education of highly specialized knowledge in a specific specialty. The Petitioner does not articulate 
how these samples evidence work duties that are so specialized or complex that the knowledge 
required to perform them is usually associated with the attainment of a bachelor's degree in a 
specific specialty. 
We acknowledge the Petitioner's assertions regarding the specialization and complexity of the 
position's duties. However, as above, those claims are undermined by the Petitioner's Level I wage 
designation. Again, in classifying the proffered position at a Level I (entry-level) wage, the 
Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that require 
limited, if any, exercise of judgment, that he would be closely supervised and his work closely 
monitored and reviewed for accuracy, and that he would receive specific instructions on required 
tasks and expected results. 8 The DOL guidance referenced above states that an employer should 
consider a Level I wage designation when the job offer is for a research fellow, a worker in training, 
or an internship. The Petitioner has not demonstrated in the record that its proffered position is one 
with duties sufficiently specialized and complex to satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
E. Prior H-lB Approvals 
On appeal, the Petitioner emphasizes that the proffered position is the same position in job title and 
duties as the previously approved H-lB petition filed by the Petitioner on behalf of the Beneficiary. 
The Petitioner also references an April23, 2004, memorandum authored by William R. Yates (Yates 
memo) as establishing that US CIS must give 'deference to those prior approvals or provide detailed 
explanations why deference is not warranted. Memorandum from William R. Yates, Associate 
Director for Operations, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the 
Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity, 
HQOPRD 72/11.3 (Apr. 23, 2004). 
First, we must note that the Yates memo specifically states as follows: 
. . . Adjudicators are not bound to approve subsequent petitions or applications 
seeking immigration benefits where eligibility has not been demonstrated, merely 
because of a prior approval which may have been erroneous. Matter of Church 
Scientology International, 19 I&N 593, 597 (Comm. 1988). Each matter must be 
decided according to the evidence of record on a case-by-case basis. See 8 C.F.R. 
§ 103.8(d). 
8 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that its duties 
are particularly complex, specialized, or unique compared to other positions within the same occupation. 
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Matter ofH-, P.C. 
... Material error, changed circumstances, or new material information must be 
clearly articulated in the resulting request for evidence or decision denying the benefit 
sought, as appropriate. 
Thus, the Yates me:mo does not advise adjudicators to approve an extension petition when the facts 
of the record do not demonstrate eligibility for the benefit sought. On the contrary, the 
memorandum's language quoted immediately above acknowledges that a petition should not be 
approved where, as here, the Petitioner has not demonstrated that the petition should be granted. 
Again, as indicated in the Yates memo, we are 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 ofChurch Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). If 
the previous nonimmigrant petition was approved based on the same description of duties and 
assertions that are contained in the current record, it would constitute material and gross error on the 
part of the Director. It would be "absurd to suggest that [USCIS] or any agency must treat 
acknowledged errors as binding precedent." Sussex Eng'g, Ltd v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987). A prior approval does not compel the approval of a subsequent petition or relieve 
the Petitioner of its burden to provide sufficient documentation to establish current eligibility for the 
benefit sought. Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.P.R. pt. 214). A 
prior approval also does not preclude USCIS from denying an extension of an original visa petition 
based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. 
App'x. 556 (5th Cir. 2004). Furthermore, our 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 nonunmigrant petitions on behalf of a beneficiary' we would not be bound to follow the 
contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 2d 
800, 803 (E.D. La. 1999). 
Second, the memorandum clearly states that each matter must be decided according to the evidence 
of record. In the appeal, the Petitioner suggests that USCIS was required to look at the prior records 
of proceedings dealing with the separate adjudication of the approved H-1B petition filed on behalf 
of the Beneficiary and provide a reason why deference is not warranted. 
Copies of that petition, however, were not included in the record and, therefore, this claim is without 
merit. If a petitioner wishes to have prior decisions considered by USCIS in its adjudication of a 
petition, the petitioner is permitted to submit copies of such evidence that it either obtained itself 
and/or received in response to a Freedom of Information Act request filed in accordance with the 
applicable regulations. Otherwise, "[t]he non-existence or other unavailability of required evidence 
creates a presumption of ineligibility." 8 C.P.R. § 103.2(b )(2)(i). 
When "any person makes application for a visa or any other document required for entry, or makes 
application for admission, ... the burden of proof shall be upon such person to establish that he is 
eligible" for such benefit. Section 291 of the Act, 8 U.S.C. § 1361; see also Matter of Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972). Each nonimmigrant and immigrant petition 
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Matter of H-, P.C. 
is a separate record of proceedings with a separate burden of proof. Each petition must stand on its 
OWn individual merits. There is no requirement either in the regulations or in USCIS procedural 
documentation requiring nonimmigrant petitions to be combined in a single record of proceedings.9 
Accordingly, the Director was not required to request and obtain a copy of the prior H-1B petition. 
Again, the Petitioner in this case has not submitted copies of the prior H-1B petition and its 
supporting documents. As the record of proceedings does not contain any evidence of the petitions, 
there were no underlying facts to be analyzed and, therefore, no prior, substantive reasons could 
have been provided to explain why deference to the approvals of the prior H-1B petition was not 
warranted. The burden of proving eligibility for the benefit sought remains entirely with the 
Petitioner. Section 291 of the Act. For this additional reason, the Yates memo does not apply in this 
instance. 
Finally, the Petitioner also cites to an unpublished AAO decision it claims involved a similar 
position. Again, when "any person makes application for a visa or any other document required for 
entry, or makes application for admission, ... the burden of proof shall be upon such person to 
establish that he is eligible" for such benefit. Section 291 of the Act, 8 U.S.C. § 1361; see also 
Matter of Treasure Craft of Cal., 14 I&N Dec. at 190. Furthermore, any suggestion that USCIS 
must review unpublished decisions and possibly request and review each case file relevant to those 
decisions, while being impractical and inefficient, would also be a shift in the evidentiary burden in 
these proceedings from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 
8 U.S.C. § 1361. Accordingly, neither the Director nor our office was required to request and/or 
obtain a copy of the unpublished decision cited by the Petitioner. 
As noted, if a petitioner wishes to have unpublished decisions considered by USCIS in the 
adjudication of a petition, the petitioner is permitted to submit copies of such evidence that it either 
obtained itself through its own legal research and/or received in response to a Freedom of 
Information Act request filed in accordance with the applicable regulations. While 8 C.F.R. 
§ 103.3(c) provides that our precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
(' 
9 USCIS does not engage in the practice of reviewing previous nonimmigrant petitions when adjudicating extension 
petitions. Given the various and changing jurisdiction over various nonimmigrant petitions and applications, requiring 
previously adjudicated nonimmigrant petitions to be reviewed before any newly filed application or petition could be 
adjudicated would result in extreme delays in the processing of petitions and applications. Furthermore, such a 
suggestion, while being impractical and inefficient, would also be a shift in the evidentiary burden in this proceeding 
from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. 
11 
Matter of H-, P.C. 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-, P.C., ID# 41366 (AAO Nov. 28, 2016) 
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