dismissed H-1B Case: Legal Services

identieing data deleted to 
prevent clearly ~nwmted 
invasion of personaI privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 05 002 54350 Office: TEXAS SERVICE CENTER Date: RAY 0 8 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 10 l(a)(lS)(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. 
fw&$%zzi Administrative Appeals ffice 
SRC 05 002 54350 
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 corporate and trust management services company that seeks to employ the beneficiary as 
a foreign legal consultant. The petitioner endeavors to class@ the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. 9 214.2(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 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. 
9 214.2@)(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. 
SRC 05 002 54350 
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The petitioner is seeking the beneficiary's services as a foreign legal consultant. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's September 21, 2004 letter in support of the petition; and 
the petitioner's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail: providing legal advice and support with regard to information and 
regulations pertaining to services for clients in foreign investments, corporate and trust management, and 
corporate, asset and project finance structuring; researching and providing information to clients regarding 
legal and corporate matters; identifying the laws of the different legal jurisdictions where the petitioner 
works; providing legal articles and other materials that pertain to the needs of the petitioner's foreign clients; 
drafting contracts, legal and financial agreements, and trust instruments; conducting research in response to 
the petitioner's clients' needs, in the areas of corporate and trust management services, corporate asset and 
project finance structuring; reviewing current market and financial information and evaluating foreign 
regulations which affect investments, corporate and trust management and asset structuring; and liaising with 
clients to keep them informed of current and/or new regulations in international and commercial law, 
international trading, and tax law. The petitioner indicated that a qualified candidate for the job would 
possess a bachelor's degree in legal studies. 
The director found that the proffered position was not a specialty occupation. Citing to the Department of 
Labor's Occupational Outlook 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 found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 
8 2 14.2(h)(4)(iii)(A). 
On appeal, counsel states that the State of Florida's Bar Association recognizes the position of foreign legal 
consultant as a professional position. Counsel states that the director erred in determining that an individual 
with an associate's degree could perform the duties of the proffered position. Counsel asserts that the duties 
require complex analytical, research and evaluative skills. Counsel further states that CIS has previously 
approved H-1B petitions for foreign legal consultants. Counsel claims that the director misinterpreted the 
Department of Labor's Dictionary of Occupational Titles (DOT) SVP for the proffered position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
9 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. 3 214.2(h)(4)(iii)(A)(I) 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 fms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 7 12 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
SRC 05 002 54350 
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The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. As counsel notes, there is no entry in the DOT or the Handbook for foreign legal 
consultants, but counsel refers to the entries for paralegals, and the AAO concurs that the duties of the proffered 
position parallel the responsibilities of the job description. No evidence in the Handbook indicates that a 
baccalaureate or higher degree, or its equivalent, in a specific specialty is required for this position. The 
Handbook clearly states that one can become a paralegal through training obtained at the associate's or bachelor's 
degree level, certificate programs, on-the-job training, or a college degree with no specific legal training. 
Counsel asserts, in part, that the director misinterpreted the DOT'S SVP rating. The DOT is not a persuasive 
source of information regarding whether a particular job requires the attainment of a baccalaureate or higher 
degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation. An SVP rating is 
meant to indicate only the total number of years of vocational preparation required for a particular position. It 
does not describe how those years are to be divided among training, formal education, and experience, and it 
does not specify the particular type of degree, if any, that a position would require. 
Regarding parallel positions, the petitioner submitted two letters from law firms (including counsel's) as well 
as an Internet listing from another law firm describing the background of that fm's paralegals. One of the 
letters states that it only hires foreign legal consultants with bachelor's degrees in legal studies. Counsel's 
letter stated that two of its paralegals have law degrees from their home countries, and that the third has the 
equivalent of a bachelor's degree in business administration. The Internet listing indicates that of the firm's 
11 paralegals, five have bachelor's degrees in business administration, political science or psychology; one 
has a bachelor's degree in sociology and a paralegal certificate; three only have paralegal certificates; and the 
information was not clear for the remaining two paralegals. This evidence clearly indicates that a bachelor's 
degree in a specific specialty is not an industry standard. 
The record includes evidence from the Florida Bar Association describing the position of a foreign legal 
consultant. This evidence states that the purpose of the rule is to permit a person who is admitted to practice 
law in a foreign country the ability to act as a foreign legal consultant in the State of Florida. The rule does 
not explicitly state that such an individual is required to have a bachelor's degree in a specific specialty. 
More relevant is that a foreign legal consultant is only authorized to act as a legal consultant "regarding the 
laws of the country in which the attorney is admitted to practice." The duties of the proffered position are 
much broader than rendering services related to the laws of the beneficiary's home country, and, therefore, are 
not equivalent to the duties of a foreign legal consultant. The requirements of the Florida Bar Association for 
certification as a legal consultant are, therefore, not probative of the proffered position as a specialty 
occupation. The record does not include any documentation to support the complexity or uniqueness of the 
proffered position. The petitioner has, thus, not established the criteria set forth at 8 C.F.R. 
2 14.2(h)(4)(iii)(A)(I) or (2). 
To determine a petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including names and dates of employment, of those employees 
with degrees who previously held the position, and copies of those employees' diplomas. This is a newly 
created position, and the petitioner is not able to meet this criterion. 
SRC 05 002 54350 
Page 5 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(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. The evidence of record does not 
distinguish the paralegal's job duties to establish that a four-year degree in a related specialty is required. 
Therefore, the evidence does not establish that the proffered position is a specialty occupation under 8 C.F.R. 
214.2(h)(4)(iii)(A)(4). 
Counsel notes that CIS approved other petitions that had been previously filed on behalf of foreign legal 
consultants. The director's decision does not indicate whether she reviewed the prior approvals of the other 
nonimmigrant petitions. 
 If the previous nonirnrnigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The AAO is 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 of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). 
Furthermore, the AAO's 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 the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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. 
Beyond the decision of the director, the AAO notes that the Chapter 16 of the Rules Regulating the Florida 
Bar indicate that a foreign legal consultant must have been engaged in the practice of law in the foreign 
country where he or she is admitted to practice law for a period of not less than 5 of the 7 years immediately 
preceding the application for certification as a foreign legal consultant. The beneficiary would not have been 
eligible for certification as a legal consultant at the time the instant petition was filed. In addition, Chapter 16 
prohibits practice as a foreign legal consultant unless and until certification as a foreign legal consultant is 
obtained, and therefore, the beneficiary would not have been eligible to perform the duties of the occupation. 
For these additional reasons, the petition may not be approved.