dismissed H-1B Case: Law

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DATE: MAY 0 It 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative AppeQJs Onlcc (AN)) 
20 IV1assachusetts Ave .. N.W., l'viS 2090 
Washine.ton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I 0 I (a)( I 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-2908) within 33 days of the date of this 
decision. The Form I-2908 web page (www.uscis.gov/i-290b) contains the latest information on fee, tiling 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will be 
dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 17-
employee dental products wholesaler and distributor established in In order to employ the 
beneficiary in what it designates as a legal specialist position, the petitioner seeks to classify her 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. § 11 01(a)(15)(H)(i)(b). 
The director denied the petition on September 19, 2014, finding that the petitioner did not establish 
that the beneficiary possesses the appropriate license as required by the proffered position or that 
the beneficiary is exempt from the requirement. The petitioner subsequently filed an appeal. 
The record of proceeding before this office contains the following: (1) the Form I-129 and 
supporting documentation; (2) the director's request for evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the director's letter denying the petition; and (5) a Notice of Appeal or 
Motion (Form I-290B), a brief, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's ground for denying this petition.' Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner indicated on the Form I-129 and in supporting documentation that it seeks to employ 
the beneficiary in a position described as a "Legal Specialist" for 9 hours per week on a part-time 
basis. The Labor Condition Application (LCA) filed in support of the petition was certified for use 
with a job prospect within the "Lawyers" occupational classification, SOC (O*NET/OES) Code 23-
1011, at a Level I (entry-level) wage. 
In a letter dated March 31, 2014, the petitioner stated that "we have been in great need of legal 
special[ist] who can assist us with high level legal knowledge in business law, encompassing our 
corporate legal affairs, including governmental affairs, corporate legal documentation issues such as 
dealing with sales contracts or partnership agreements, corporate taxation, real estate finance 
problems, and securities regulations, etc." The petitioner further indicated that "[t]o protect the 
company's intellectual properties of patents and trademarks, the worker should have specific legal 
knowledge to solve any possible tort or fraud problems." The petitioner also stated that they are in 
need of "a professional who can provide our management the most recent international trade 
policies ever changing between the United States and other count[ries] where we have customers." 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). 
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The petitioner indicated that the beneficiary's specific duties were as follows: 
• Assist management by means of corporate legal counseling in regard to corporate 
legal affairs with government, corporate legal documentation such as sales 
contracts or dealership contracts/partnership agreements, corporate taxation, real 
estate finance problems, and securities regulations, etc. 25% 
• Study and summarize legal defenses to protect the company's intellectual 
property, patent, or trademark, then explain to CEO. 25% 
• Draft, negotiate contracts with customers in US and other foreign countries as 
well as with vendors for raw material in USA. 20% 
• Study and research international trade policy, specifically in transnational dental 
sales and goods between US and China, and assist management to apply them in 
multinational trade business. 15% 
• Review, analyze legal issues of any breach of contracts; Evaluate remedies by 
breach of contracts, and explain and report to management. 1 0% 
• Research, revise and rewrite company policies and procedures manual. 5% 
[Verbatim.] 
The petitioner also stated that the "nature of the specific duties of Legal Specialist in our company 
is so complex and specialized that the knowledge to perform the said duties can be attained by the 
educational course for the Master�s Degree in Business Law or in equivalent field in minimum." 
The petitioner also stated that the "job duties of our Legal Specialist position are similar to those of 
Lawyer in nature." The petitioner submitted the Master of Law degree and Graduate Certificate in 
Business Law awarded to the beneficiary from the 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE on May 16, 2014. The director noted that the petitioner did not submit sufficient 
documentation of the beneficiary's qualifications. The director requested a copy of the 
beneficiary's attorney license or a temporary license, interim permit or other authorization issued by 
the agency that authorized the beneficiary to practice the profession. The RFE also stated that "if 
the state where the beneficiary will work allows an individual to fully practice the occupation under 
the supervision of licensed senior or supervisory personnel in that occupation, provide evidence of 
such and a copy of the senior or supervisor's license to practice as a member of the profession." 
In response, the petitioner submitted a letter from Attorney at Law, dated August 
5, 2014. The letter stated that "this office is legal counsel for [the petitioner]." Mr. also stated 
that the beneficiary has "provided assistance to our office under my supervision in the areas of legal 
research and analysis, preparation of memorandum, including memorandums of points and 
authorities, assisting in client interviews, negotiations and the drafting of legal documents." Mr. 
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also provided a copy of his license from the State Bar of California. 
The director denied the petition and noted that the petitioner did not provide any evidence to show 
that the State of California allows the beneficiary to work as a Legal Specialist without a license. 
On appeal, the petitioner cites the California Business and Professions Code section 6125 that states 
"[n]o person shall practice law in this state unless he is an active member of the State Bar." The 
petitioner also cites case law and the ABA Model Code of Professional Responsibility. The 
petitioner also states that "as such practice law means applying rules of law to facts for others," and 
"in this particular case, the beneficiary will work for the petitioner, her employer, and under the 
supervision of corporate law." The petitioner also states that the beneficiary "will not apply rules of 
law for anybody else besides her employer." 
II. BENEFICIARY'S QUALIFICATIONS 
The issue is whether the petitioner has provided sufficient evidence to establish that the beneficiary 
possesses the requisite license for the proffered position or that the beneficiary is exempt from the 
requirement. 
A. Law 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as 
an H-1 B nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure ts 
required to practice in the occupation, 
(B) completion of the degree described m paragraph (l)(B) for the 
occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such 
degree, and · 
(ii) recognition of expertise in the specialty through progressively 
responsible positions relating to the specialty. 
In implementing section 21 4(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states 
that an alien must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the 
specialty occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation 
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from an accredited college or university; 
(3) Hold an unrestricted state license, registration or certification which 
authorizes him or her to fully practice the specialty occupation and be 
immediately engaged in that specialty in the state of intended 
employment; or 
( 4) Have education, specialized trammg, and/or progressively responsible 
experience that are equivalent to completion of a United States 
baccalaureate or higher degree in the specialty occupation, and have 
recognition of expertise in the specialty through progressively 
responsible positions directly related to the specialty. 
In addition, 8 C.F.R. § 214.2(h)(4)(v)(A) states: 
General. If an occupation requires a state or local license for an individual to fully 
perform the duties of the occupation, an alien (except an H -1 C nurse) seeking H 
classification in that occupation must have that license prior to approval of the 
petition to be found qualified to enter the United States and immediately engage in 
employment in the occupation. 
Therefore, to qualify an alien for classification as an H-1B nonimmigrant worker under the Act, the 
petitioner must establish that the beneficiary possesses the requisite license or, if none is required, 
that he or she has completed a degree in the specialty that the occupation requires. Alternatively, if 
a license is not required and if the beneficiary does not possess the required U.S. degree or its 
foreign degree equivalent, the petitioner must show that the beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty 
through progressively responsible positions relating to the specialty. 
B. Analysis 
In the instant matter, the petitioner claims that the proffered position is a "Legal Specialist." As 
mentioned, the petitioner filed the LCA for the occupational classification "Lawyers" - SOC 
(ONET/OES Code) 23-1011. Further, in the letter of support dated March 31, 2014, the petitioner 
stated that the "j ob duties of our Legal Specialist position are similar to those of Lawyer in nature." 
To determine the licensure requirement for the proffered position, we turn to the U.S. Department of 
Labor's Occupational Outlook Handbook (Handbook). We recognize the Handbook as an 
authoritative source on the duties and educational/license requirements of the wide variety of 
occupations that it addresses ? The subchapter of the Handbook entitled "How to Become a 
Lawyer" states the following about this occupational category: 
2 All of our references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/ OCO/. 
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Licenses 
Becoming licensed as a lawyer is called being "admitted to the bar" and licensing 
exams are called "bar exams." 
To practice law in any state, a person must be admitted to its bar under rules 
established by the jurisdiction's highest court. The requirements vary by individual 
states and jurisdictions. For more details on individual state and jurisdiction 
requirements, visit the National Conference of Bar Examiners. 
Most states require that applicants graduate from an ABA-accredited law school, 
pass one or more written bar exams, and be found by an admitting board to have the 
character to represent and advise others. Lawyers who want to practice in more than 
one state must often take separate bar exams in each state. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Lawyers, on the Internet at http:// www .bls.gov/ooh/legalllawyers.htm#tab-4 (last visited April 29, 
2015). 
According to the Handbook, "[t]o practice law in any state, a person must be admitted to its bar 
under rules established by the jurisdiction's highest court." We further note that as mentioned by 
the petitioner, the California Business and Professions Code Section 6125 states that "[n]o person 
shall practice law in California unless the person is an active member of the State Bar." 
As previously mentioned, the petitioner indicated that the classification "Lawyer" is the most 
appropriate occupational category for the proffered position. Further, the petitioner filed the 
supporting LCA for the occupational classification "Lawyers"- SOC (ONET/OES Code) 23-1011. 
However, on appeal, the petitioner claims that it "used lawyer's salary guideline as a reference for 
the salary of legal specialist position so that the employment would not affect or detriment U.S. 
labor market," but "it does not mean (that] the position offered is for a practicing lawyer." The 
petitioner further asserts that a license to practice law is not required because "the beneficiary's 
work[sic] with a manufacturer, wholesaler/Distributor in dental products do[es] not constitute 
practice of law." The petitioner claims that California courts define the practice of law as "the 
doing or performing services in a court of justice in any matter, depending therein, throughout its 
various stages and in conformity with the adopted rules of procedure." The petitioner states that the 
beneficiary "will perform all her duties on the business premises of the employer and will not go to 
court," and "will not apply rules of law for anybody else besides her employer." 
Contrary to the petitioner's claim, we find that the courts stated that the definition of the term 
"practice of law" includes "preparation of legal instruments and contracts by which legal rights are 
secured although such matter or may not be depending in a court." Birbrower, Montalbano, Condon 
& Frank, P.C., v. Superior Court, 17 Cal.41h 119, 128 (Cal. 1998)(quoting People ex. Rel. Lawyers 
Institute of San Diego v. Merchants' Protective Corp., 189 Cal. 531, 535 (Cal. 1922). Therefore, 
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the term "practice of law" is not limited to matters in court, but includes legal advice and counsel, 
and preparation of legal instruments and contracts. 
In this case, the petitioner had stated in its support letter dated March 31, 2014 that the beneficiary 
will "assist management by means of corporate legal counseling," "study and summarize legal 
defenses to protect the company's intellectual property, patent, or trademark," and "draft, negotiate 
contracts with customers in U[.]S[.] and other foreign countries." Such duties constitute the 
definition of "practice of law," which includes "legal advice and counsel" and "preparation of legal 
instruments and contracts," and require that the beneficiary is an active member of the state bar in 
accordance to the California Business and Professions Code Section 6125. 
We note that 8 C.F.R. § 214.2(h)(4)(v)(C) offers an exemption from the licensure requirements 
under certain circumstances;· however, the petitioner did not establish that the beneficiary meets the 
criteria for an exemption. Specifically, 8 C.F.R. § 214.2(h)(4)(v)(C) states: 
In certain occupations which general ly require licensure, a state may allow an 
individual to fully practice the occupation under the supervision of licensed senior or 
supervisory personnel in that occupation. In such cases, the director shall examine 
the nature of the duties and the level at which they are performed. If the facts 
demonstrate that the alien under supervision could fully perform the duties of the 
occupation, H classification may be granted. 
In the support letter filed with the Form I-129, the petitioner did not indicate that the beneficiary 
will be supervised by a licensed attorney. In response to the RFE, the petitioner submitted a letter 
from Mr. who claimed that the beneficiary has been working under his supervision. 
However, the petitioner did not submit documentary evidence to substantiate Mr. claim of 
supervision of the beneficiary. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof fici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Calif ornia, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). Further, the petitioner did not submit evidence to establish that the State of 
California allows individuals to fully practice as a lawyer under the supervision of licensed lawyer. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of 
Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
1989); Matter of Sao Hoo, 11 I&N Dec. 151 (BIA 1965). 
Therefore, the petitioner did not establish that the beneficiary could fully perform the duties of the 
occupation under supervision, and qualifies for an exemption from the licensure requirement. 
III. CONCLUSION AND ORDER 
For the reasons discussed above, we conclude that the evidence of record does not establish that 
beneficiary is qualified to perform the duties of the proffered position. 
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The petition will be denied and the appeal dismissed for the above stated reasons, 3 with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish 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. 
3 As the grounds discussed above preclude approval of the petition, we will not address additional issues and 
deficiencies that we observe in the record of proceeding.