dismissed H-1B Case: Medical Laboratory Science

iwfying data deleted to 
pvat clearly unwarranted 
invasion of personal pdvsy 
U.S. Department of Ilomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 04 169 50584 Office: CALIFORNIA SERVICE CENTER Date: AuG 2 9 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 1 Ol(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 101(a)(l 5)(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 
WAC 04 169 50584 
Page 2 
DISCUSSION: The director of the California Service Center 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 medical laboratory, with 10 employees. It seeks to employ the beneficiary, who is already 
the beneficiary of an H-1B petition filed by a previous employer, as a quality assurance specialist. The 
director denied the petition based on his determination that the proffered position did not meet the 
requirements for classification as a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) the petitioner's responses to that request; (4) the director's denial letter; 
and (4) Form I-290B, with counsel's brief. The AAO reviewed the record in its entirety before reaching its 
decision. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meet its burden of proof in this regard, a petitioner must establish that the job it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1184(i)(l) defines the term 
"specialty occupation" as one 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. fj 214.2(h)(4)(ii) as: 
An 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. fj 2 14.2(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 
WAC 04 169 50584 
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(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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5'h Cir. 2000). The critical element is not the title of the position nor 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. 
The petitioner states that it is seeking the beneficiary's services as a quality assurance specialist. Evidence of 
the beneficiary's duties includes: the Form 1-129; the petitioner's May 19, 2004 letter in support of the 
petition; and its October 19, 2004 response to the director's request for evidence. As described by the 
petitioner, the duties of the proffered position would require the beneficiary to: 
Design, develop, and initiate standards and methods for inspecting, testing, and evaluating 
chemical, microscopic, and bacteriologic tests; 
Establish a program to evaluate the precision and accuracy of the laboratory equipment; 
Develop and implement methods for the safe disposition of large quantities of medical waste; 
and 
Compile and write training materials to ensure proper handling of the chemical, microscopic, 
and bacteriologic tests and the disposition of hazardous medical waste. 
The petitioner has stated that the performance of the proffered position's duties would require the minimum 
of a baccalaureate degree in chemistry or a related field. 
To determine whether the above duties are those of a specialty occupation, the AAO first considers the 
criteria at 8 C.F.R. 5 214.2(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; and 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 considered by the AAO when 
determining these criteria include: whether the Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
occupations, 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 and recruit only degreed individuals." See Shanti, Inc. v. 
WAC 04 169 50584 
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Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 
1102 (S.D.N.Y. 1989)). 
In his denial, the director, relying on the 2004-2005 edition of the DOL Handbook, found the job duties 
provided by petitioner to describe the employment of a science technician. On appeal, counsel contends that 
the director erred in reaching this conclusion, and that he failed to consider the more complex and supervisory 
duties to be performed by the beneficiary. She asserts that the proffered position is more closely aligned with 
the employment of a quality control or industrial engineer than that of a science technician. The AAO agrees 
with neither characterization of the offered employment. Instead, it finds the evidence of record to contain 
inconsistencies that preclude any determination concerning the nature of the duties the beneficiary would 
perform. 
The petitioner has provided a list of broadly-defined quality assurance duties, several of which cannot be 
reconciled with information provided by the "Quality Assurance Policies and Procedures" section of the 
petitioner's "General Policies and Procedures Manual. This material, submitted by the petitioner to establish 
"the type of work to be performed and supervised" by the beneficiary, appears to contradict the petitioner's 
contention that it would employ the beneficiary as a quality assurance specialist. While the petitioner has 
stated that the beneficiary would coordinate quality control objectives and activities to resolve testing 
problems and administer a program to evaluate laboratory equipment, the manual indicates that responsibility 
for quality assurance within the petitioner's organization is assigned to the petitioner's laboratory director 
and/or technical supervisor. It states that these individuals are to "document and evaluate" laboratory 
performance. The petitioner has also asserted that the beneficiary would have responsibility for designing, 
developing and initiating the standards and methods for inspecting, testing and evaluating laboratory tests. 
However, the procedures manual indicates that the petitioner has a quality assurance process already in place 
and does not require the beneficiary to design or develop quality assurance standards. 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective 
evidence. If such inconsistencies are not explained, the doubt cast upon the petitioner's evidence may lead to 
a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho 19 I&N Dec. 582, 591-592 (BIA 1988). In the instant case, the petitioner has submitted 
information that appears to contradict its statements regarding the duties of the proffered position. The record 
fails to address how the position's duties fit within the petitioner's existing quality assurance program or be 
distinguished from that program. Accordingly, the AAO finds the record to offer no reliable description of 
the duties of the proffered position, and, therefore, to prevent the petitioner from establishing the proffered 
position as a specialty occupation under the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I) - a baccalaureate or 
higher degree or its equivalent is normally the minimum requirement for entry into the particular position. 
Moreover, the inconsistencies in the record also preclude the petitioner from establishing that it would employ 
the beneficiary in a specialty occupation, as required by section lOl(a)(l5)(i)(b) of the Act, 8 U.S.C. 
$ 1 10 l(a)(l 5)(H)(i)(b), and the regulation at 8 C.F.R. $ 2 14,2(h)(l)(ii)(B). 
On appeal, as previously noted, counsel states that the beneficiary's supervision of the petitioner's clinical 
laboratory scientists and other medical technicians demonstrates the complex nature of her duties. The 
WAC 04 169 50584 
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beneficiary's supervisory responsibilities were not among the duties of the proffered position listed by the 
petitioner at the time of filing. Accordingly, they will not be considered by the AAO. 
The purpose of a request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). When responding to a request for evidence, a 
petitioner cannot, therefore, offer a new position to the beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or its associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
specialty occupation. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). As the 
introduction of the beneficiary's supervisory responsibilities in response to the director's request for evidence 
represents a material change to the duties listed at the time of filing, they will not be considered. 
On appeal, counsel also contends that the petitioner's degree requirement - a baccalaureate degree in 
chemistry - is common within its industry and has been established by the five Internet job advertisements for 
quality assurance specialists submitted by the petitioner. Counsel's reasoning is not persuasive. 
To qualify a proffered position as a specialty occupation under the alternate prongs of the criterion at 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2), a petitioner must prove that the degree requirement is common to the industry in 
parallel positions among similar organizations, or that the proffered position is so complex or unique that it 
can be performed only by an individual with a degree. The five online announcements for quality assurance 
specialists do not, however, respond to the requirements of the criterion's first prong. They do not establish 
that the jobs advertised are parallel to the proffered position or come from similar organizations. 
The five listings are published by a reproductive technology company involved in advanced infertility testing, 
a pharmaceutical company, a company providing over-the-counter medicine and nutritional products, and two 
organizations that do not identify their businesses. They do not, therefore, constitute proof of a degree 
requirement among organizations similar to the petitioner, a business providing laboratory, x-ray and 
radiological services to medical facilities. Neither do they establish that the jobs advertised are parallel to the 
proffered position, as the record does not provide a meaningful job description against which to compare 
them. 
On appeal, counsel contends that the submitted job listings are from employers similar to the petitioner and 
that one of the announcements is published by a company that provides services identical to those offered by 
the petitioner. However, as noted above, the announcements do not support counsel's assertions. 
Accordingly, they do not establish that the petitioner's degree requirement is the norm within its industry. 
Without documentation to support the claim, the assertions of counsel are not sufficient to meet the 
petitioner's burden of proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
The record also fails to demonstrate that the proffered position may be distinguished from similar but 
nondegreed employment based on its complexity or unique nature. Although the petitioner has asserted the 
complex nature of the proffered position, its failure to provide a reliable description of the position's duties 
WAC 04 169 50584 
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precludes it from demonstrating that the offered employment is either complex or unique. Going on record 
without supporting documentation is not sufficient to meet the burden of proof in these proceedings. Matter 
of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). Therefore, the record does not establish the proffered position as a specialty 
occupation under either prong of the second criterion. 
The AAO next considers the criteria at 8 C.F.R. 8 214.2(h)(4)(iii)(3) and (4): the employer normally requires 
a degree or its equivalent for the position; and 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. 
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. Although at the 
time of filing, the petitioner stated that it normally required a degree or its equivalent for the position, the 
record does not indicate that the petitioner has previously employed anyone in the position of quality 
assurance specialist. Neither has the petitioner submitted evidence to establish that it has a practice of 
employing only degreed applicants when filling testing-related positions. Although it has indicated that 
several of its laboratory personnel have H-1B status, the record contains no proof of the degrees held by any 
of the petitioner's laboratory personnel. Going on record without supporting documentation is not sufficient 
to meet the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of Califarnia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Accordingly, the 
proffered position has not been established as a specialty occupation under the criterion at 8 C.F.R. 
8 2 14.2(h)(4)(iii)(A)(3). 
The fourth criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A) requires that a petitioner prove that the nature of the 
specific duties of the position 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 response to the director's 
request for evidence, the petitioner asserted that the duties of the proffered position meet the specialized and 
complex threshold of the fourth criterion, noting the beneficiary's responsibility for the independent review 
and analysis of highly technical material. On appeal, counsel again raises these same responsibilities as proof 
that the proffered position qualifies as a specialty occupation. However, as previously discussed, the record 
does not offer a reliable description of the duties of the proffered position. Having failed to establish the 
duties to be performed by the beneficiary, the petitioner is precluded from proving they are of sufficient 
complexity and specialization to satisfy the requirements at 8 C.F.R. 8 2 14.2(h)(4)(iii)(A)(4). 
The AAO notes that the basis for its decision differs from that relied upon by the director. An application or 
petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the 
Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, 
Znc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ard 345 F.3d 683 (9th Cir. 2003); see 
also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo 
basis). 
WAC 04 169 50584 
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For reasons previously discussed, the record does not establish the proffered position as a specialty 
occupation under the requirements at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 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. 
5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.