dismissed H-1B Case: Law

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U.S. Departmentor HomelandSecurity
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLIC,COpy
(\) .,.,
SEP 11 2007
FILE: LIN 05 218 52454 Office: NEBRASKA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 110I(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe 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.uscis.gov
LIN 0521852454
Page 2
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 law finn that seeks to employ the beneficiary as a legal advisor in Islamic law. The petitioner
endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section
101(aX15)(H)(iXb) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(aX15XH)(i)(b).
The director denied the petition because the proffered position does not qualify as a specialty occupation. On
appeal, the petitioner submits a brief stating that the offered position qualifies as a specialty occupation.
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty
occupation.
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perfonn
services in a specialty occupation.
Section 214(i)(I) of the Act, 8 U.S.C. § I I 84(iXI), defines the tenn "specialty occupation" as an occupation
that requires:
(A) theoretical and practical application ofa 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.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
[A]n occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts,and which requires the attainment of
a bachelor's degree or higher in a 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 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;
LIN 05 218 52454
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(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required
to perfonn 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)(4Xiii)(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: (l) the 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) the Form 1-290B with supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The petitioner is seeking the beneficiary's services as an advisor in Islamic law. Evidence of the beneficiary's
duties includes the Fonn 1-129 petition with attachment and the petitioner's response to the director's request
for evidence. According to the evidence the beneficiary would:
• Prepare legal documents, including briefs, pleadings, appeals, Islamic wills, Islamic contracts, real
estate closing statements, affidavits and other documents;
• Maintain document files and file pleadings with various federal and state court clerks;
• Gather and analyze research data, such as statutes, decisions, legal articles, codes and documents;
• Investigate the facts and law of cases to detennine causes of action and relevancy under Islamic law;
• Prepare legal documents including legal briefs and memoranda to be presented to the attorney; and
• Communicate and interact with clients to obtain facts of cases.
The petitioner finds the beneficiary qualified for the proffered position by virtue of his foreign education,
training and experience in Sharia Law.
The AAO routinely consults the Department of Labor's Occupational Out/ook Handbook (Handbook) for
information about the duties and educational requirements of particular occupations. The duties of the
proffered position are those noted for paralegals and are described in the Handbook as follows:
While lawyers assume ultimate responsibility for legal work, they often delegate many of
their tasks to paralegals. In fact, paralegals - also called legal assistants - continue to assume
a growing range of tasks in the Nation's legal offices and perform many of the same tasks as
lawyers. Nevertheless, they are still explicitly prohibited from carrying out duties which are
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considered to be the practice of law, such as setting legal fees, giving legal advice, and
presenting cases in court.
One of a paralegal's most important tasks is helping lawyers prepare for closings,
hearings, trials, and corporate meetings. Paralegals investigate the facts of cases and ensure
that all relevant information is considered. They also identitY appropriate laws, judicial
decisions, legill articles, and other materials that are relevant to assigned cases. After they
analyze and organize the information, paralegals may prepare written reports that attorneys
use in determining how cases should be handled. Should attorneys decide to file lawsuits on
behalf of clients, paralegals may help prepare the legal arguments, draft pleadings and
motions to be filed with the court, obtain affidavits, and assist attorneys during trials.
Paralegals also organize and track files of all important case documents and make them
available and easily accessible to attorneys.
In addition to this preparatory work, paralegals also perform a number of other vital
functions. For example, they help draft contracts, mortgages, separation agreements, and
trust instruments. They also may assist in preparing tax returns and planning estates. Some
paralegals coordinate the activities of other law office employees and maintain financial
office records. Various additional tasks may differ, depending on the employer.
The Handbook notes that there are several ways to become a paralegal, and that employers usually require
formal paralegal training through an associatelbachelor's degree, or certification programs. Increasingly,
employers prefer graduates of four-year paralegal programs, or college graduates with paralegal certification.
Other employers, however, prefer to train college graduates with no experience, or to promote experienced
legal secretaries. It is, therefore, apparent that a baccalaureate or higher degree in a specific specialty, or its
equivalent, is not normally the minimum requirement for entry into the proffered position. The petitioner has
failed to satisfy the first criterion of8 C.F.R. § 214.2(h)(4)(iiiXA).
The petitioner asserts that a degree is common to the industry in parallel positions among similar
organizations. 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). In support of this assertion, the petitioner submitted copies
of five job advertisements. Three of the advertisements require a bachelor's degree, but do not indicate that
the degree need be in any particular field of study. One advertisement states that a bachelor's degree is
preferred (not required), and the remaining advertisement indicates only that a bachelor's degree is "a plus."
The advertisements do not establish that a bachelor's degree in a specific field of study is common to the
industry in parallel positions among similar organizations and the petitioner has failed to establish the
referenced criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The petitioner does not assert that it normally requires a degree for the proffered position, and offers no
evidence to establish this criterion as the position is apparently new with his law firm. 8 C.F.R.
§ 214.2(hX4)(iii)(A)(3).
Finally, the duties to be performed by the beneficiary are not so specialized and complex that knowledge
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a
specific specialty. Nor are the duties so complex or unique that they can be performed only by an individual
",
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with a degree in a specific specialty. The duties have not been developed in the context of the petitioner's
business to establish them as other than routine for paralegal positions in the industry and regularly performed
by individuals with less than a baccalaureate level education in a specific specialty, and by individuals with
degrees in a wide range of educational disciplines. The petitioner is a law fmn in Chicago, IL with one
employee and $192,000 in gross annual income. While the petitioner states that the beneficiary will be
preparing Islamic wills and contracts and determining relevancy of cases under Islamic law, the record does
not establish that the petitioner provides legal advice in Sharia Law. The petitioner does not adequately
document or explain the nature of its clients "legal problems in the Middle East with many Islamic (Sharia)
law issues" that would require a legal specialist with a baccalaureate degree of law. Simply going on the
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter ofTreasure Craft
of California. 14I&N 190 (Reg. Comm. 1972». The fact that the beneficiary will perform paralegal duties
on Sharia Law does not make the position any more specialized, complex or unique than advising on other
areas of law that would be researched and written about by the beneficiary during the course and scope of his
employment. The petitioner has failed to establish the referenced criteria at 8 C.F.R. §§ 214.2(hX4Xiii)(AX2)
or (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 denial of the 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 failed to sustain that burden and the appeal shall accordingly be dismissed.
ORDER: The appeal is dismissed. The petition is denied.