dismissed H-1B Case: Lawn Care

PUBLICCOpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u S. Citizenship
and Immigration
Services
\ 2
FILE: SRC 05 243 50452 Office: TEXAS SERVICE CENTER Date: SEP 1 0 1.001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 11 Ol(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the 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
SRC 05 243 50452
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 chemical lawn care service that seeks to employ the beneficiary as a lawn care specialist
manager. It endeavors to classify him 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. § 1101(a)(15)(H)(i)(b).
The director denied the petition because the proffered position does not qualify as a specialty occupation, because
the beneficiary is not qualified to perform the duties of a specialty occupation, and because a properly certified
labor condition application (LCA) was not submitted with the Form 1-129. On appeal, counsel submits a brief
asserting that the offered position qualifies as a specialty occupation, that the beneficiary is qualified to perform
the duties of a specialty occupation, and that a properly certified LCA was submitted with the filing of the Form 1­
129.
The first issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty
occupation.
Section 101(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform
services in 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.
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:
(l) A baccalaureate or higher degree or its equivalent is normally the minimum requirement
for entry into the particular position;
SRC 05 243 50452
Page 3
(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 are 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.
§ 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) 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 a lawn care specialist manager. Evidence of the
beneficiary's duties was set forth in attachments to the From 1-129 and in the petitioner's response to the
director's request for evidence. According to this evidence the beneficiary would:
• Manage and maintain commercial and residential accounts;
• Determine lawn treatments/mixture of chemicals to be used III both commercial and residential
accounts ;
• Monitor timing and quality of lawn care maintenance services;
• Ensure customer satisfaction by providing direction and support to lawn care specialists for tactical
and strategic projects;
• Train, coach and counsel lawn care specialists to promote employee development and professional
growth;
• Regularly undertake performance appraisal of subordinates to identify training needs and areas for
improvement;
• Use project management/leadership/facilitation skills to achieve business results within
project/process deadlines; and
• Develop and manage a plan to achieve project goals by monitoring project processes, identifying
gaps, and initiating process improvement projects to close gaps and measure project results .
SRC 05 243 50452
Page 4
The petitioner requires a bachelor's degree in a science field for entry into the proffered position.
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for
information about the duties and educational requirements of particular occupations. The duties of the
proffered position are essentially those noted for general/operations managers, with some additional duties as
supervisor of landscaping workers. The Handbook notes that the formal education and experience of general
managers varies as widely as the nature of their responsibilities. Many have a bachelor's or higher degree in
business administration or liberal arts, while others obtain their positions by promotion from lower level
management positions. Thus, itis possible to obtain a position as a general or operations manager without a
college degree by promotion from within the organization based upon performance alone. There are
generally no minimum educational requirements for landscaping worker supervisors. It is apparent from the
Handbook that a baccalaureate or higher degree, in a specific specialty, is not the minimum requirement for
entry into the offered position. Positions requiring a college degree are filled from a wide range of
educational disciplines. A degree in a specific specialty, however, is not required. The petitioner has failed to
establish the first criterion of8 C.F.R. § 214.2(h)(4)(iii)(A).
The petitioner does not assert that a degree requirement is common to the industry in parallel positions among
similar organizations, and offers no evidence in this regard. As such, it has failed to establish the criterion at
8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The petitioner states that it normally requires a degree for the proffered position. The petitioner, however,
offered no evidence in support of this statement. The educational credentials of former employees may be
established by providing copies of the employees' degrees, or other documentation from the universities
where the degrees were obtained. Simply going on the record without supporting documentary evidence is
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N 190 (Reg. Comm.
1972)). Further, CIS must examine the ultimate employment of the alien, and determine whether the position
qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 F. 3d 384 (5 th 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 minimum for entry into the
occupation as required by the Act. To interpret the regulations any other way would lead to absurd results: if
CIS were limited to reviewing a petitioner's self-imposed employment requirements, then any alien with a
bachelor's degree could be brought into the United States to perform menial, non-professional, or an
otherwise non-specialty occupation, so long as the employer required all such employees to have
baccalaureate or higher degrees. See id at 388. The petitioner has not established the criterion at 8 C.F.R.
§ 14.2(h)(4)(iii)(A)(3).
Finally, the petitioner has not established that the duties of the offered position are so complex or unique that
they can only be performed by an individual with a degree in a specific specialty, or that the duties are 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. The duties detailed by the petitioner are general in
nature and, as described by the petitioner, do not contain duties that require baccalaureate level education in a
SRC 05 243 50452
Page 5
specific educational discipline to perform them. For example , the following duties are general managerial
duties that would be performed by all managers in the petitioner 's industry:
• Manage and maintain commercial and residential accounts;
• Monitor timing and quality of lawn care maintenance services;
• Ensure customer satisfaction by providing direction and support to subordinates;
• Train, coach and counsel lawn care specialists to promote employee development and growth;
• Conduct performance appraisals; and
• Use management skills to achieve business results within project deadlines.
The record does not establish that these duties are any more unique , specialized or complex than those
performed by general managers in the industry who do not possess a baccalaureate level education, or by
those who have degrees in a wide range of unrelated disciplines. The petitioner has failed to establish the
referenced criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or (4).
The petitioner has failed to establish that the offered position meets any of the criteria listed at 8 C.F.R.
§ 214.2(h)(4)(iii)(A). Accordingly, the AAO shall not disturb the director's denial of the petition.
The director also found a credentials evaluation submitted on behalf of the beneficiary established that the
beneficiary had a foreign degree equivalent to a degree in hotel management from an accredited university in
the United States , and that the degree was unrelated to the duties of the proffered position. On appeal, the
petitioner submitted a new evaluation which states that the beneficiary's foreign education is equivalent to a
bachelor 's degree in agricultural science from an accredited university in the United States. The petitioner
did not , however , submit copies of the beneficiary's university transcripts to verify this course of study, or to
explain the conflict between the degrees cited in the two credentials evaluations submitted. The evaluations,
therefore, are of little evidentiary value. CIS may , in its discretion, use as advisory opinion statements
submitted as expert testimony. However, where an opinion is not in accord with other information or is in
any way questionable, CIS is not required to accept, or may give less weight , to that evidence. Matter of
Caron International , 19 I&N Dec. 791 (Comm. 1988). The petitioner has not established that the beneficiary
is qualified to perform the duties of a specialty occupation.
Finally, the director noted that the petitioner had failed to submit a properly certified LCA with the filing of
the Form 1-129 petition.
Title 8, Code of Federal Regulations, part 214.2(h)(4)(iii)(B)(1) provides that the petitioner shall submit with an
H-1B petition "a certification from the Secretary of Labor that the petitioner has filed a labor condition
application with the Secretary." The regulations further provide:
SRC 05 243 50452
Page 6
Before filing a petition for H-l B classification in a specialty occupation the petitioner shall
obtain a certification from the Department of Labor that it has filed a labor condition
application in the occupational specialty in which the alien(s) will be employed.
8 C.F.R. § 214.2(h)(4)(i)(B)(l).
Pursuant to 8 C.F.R. § 103.2(b)(l2), "an application or petition shall be denied where evidence submitted in
response to a request for initial evidence does not establish filing eligibility at the time the application or petition
was filed .... " The Form 1-129 petition was filed September 2, 2005. 1 The LCA submitted was certified for
employment from March 29, 2004 to August 13, 2005, and did not authorize employment as of the filing of the
Form 1-129. The director then submitted a request for evidence (RFE) requesting, in part, that the petitioner
submit a properly certified LCA. In response to that request the petitioner submitted an LCA certified on
February 6, 2006, subsequent to the filing of the initial petition. For this additional reason, the petition must be
denied.
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.
ORDER: The appeal is dismissed. The petition is denied.
I The form 1-129 was initially submitted for filing on July 27,2005, but was not accepted by the service center
and returned to the petitioner for failure to pay the required Anti Fraud Fee.