dismissed H-1B Case: Medicine

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
identi&ing data deleted to 
prevent clearly unwarmted 
invasion of penonal pimy 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 02 253 51 553 Office: VERMONT SERVICE CENTER Date: JUN 1 2 2006 
PETITION: Petition for a Noni'mnligrant Worker Pursuant to Section 101 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
EAC 02 253 5 1553 
Page 2 
DISCUSSION: The 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. 
As a preliminary matter, the AAO notes that effective August 3, 2005, the petitioner's attorney, Robert M. 
Kuhnreich, was suspended from practice before the Department of Homeland Security in immigration 
matters. While the AAO will consider the representations of counsel, it will not notify him of the 
outcome of this proceeding. 
The petitioner is a hospital that seeks to employ the beneficiary as a registered nurse. The petitioner, 
therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant 
to section IOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition on two grounds: that the petitioner had failed to establish that the proposed 
position qualifies for classificatiorl as a specialty occupation, and that the beneficiary was not qualified to 
perform the duties of a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 184(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. 3 214.2(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. 3 214.2(hX4XiiiXA), 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; 
(3) The employer normally requires a degree or its equivalent for the position; or 
EAC 02 253 5 1553 
Page 3 
( 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. 8 214.2(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 proposed 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 I-290B and supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
The petitioner, a hospital with 1,473 employees, was established in 1897 and has a gross annual income of 
$180,124,972. It proposes to hire the beneficiary as a nurse. 111 counsel's January 17, 2003 response to the 
director's request for evidence, the petitioner stated that the position being filled is a "registered nurse in a 
critical care unit." The specific duties were set forth as follows: 
The beneficiary is a registered nurse who will, except for attending meetings, education 
classes and doing preparatory work, spends [sic] virtually all of [her] time in the 
Medical-Surgical Unit [emphasis in original]. The nurse will have the following 
responsibilities: caring for patients who have serious medical or surgical problems, 
monitoring their condition, watching them for even slight changes in their condition which 
could indicate complications and/or heart attacks. This work involves monitoring the newest 
of equipment, utilizing modem technology, and having a depth of knowledge as well as 
breadth of knowledge that would enable the nurse to recognize even small symptoms of 
bre complication. Failure to recognize these symptoms in time for the doctors to treat the 
patients could lead to debilitating conditions or even death. 
It should be recognized that medical-surgical patients are constantly at risk for immediate 
and particularly fatal setbacks. A registered nurse charged with caring for patients with 
serious medical problems, or conditions that make the patient a serious surgical patient, must 
be particularly well educated in those many problems that can affect all of the patients, 
because of the extremely wide variety of problems that the beneficiary will be charged with 
caring for, all at the same time. Unlike a general ward, where the immediate failure to 
recognize slight changes of condition could result in minor problems in a patient, the 
patient in the medical-surgical unit could be in immediate peril of death if even small 
changes in condition are not recognized and understood [emphasis in original]. 
The director denied the petition, finding that the petitioner had satisfied none of the four criteria set forth at 
8 C.F.R. § 214.2(h)(4)(iii)(A), and therefore had not established that the proposed position qualifies for 
classification as a specialty occupation. 
On appeal, counsel contends that the proposed position qualifies for classification as a specialty 
occupation, referring to the description of the duties of the proposed position, a November 27, 2002 CIS 
memorandum, letters from medical experts, a Journal of the American Medical Association (JAM) 
EAC 02 253 5 1553 
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study, information about degree programs in nursing, a press release, and evidence from the Department 
of Veterans' Affairs (the V.A.). 
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title 
of the position and determines, from a review of the duties of the position and any supporting evidence, 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the 
minimum for entry into the occupation as required by the Act. The AAO routinely consults the 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
The petitioner has established none of the four criteria outlined in 8 C.F.R. 8 214.2(h)(4)(iii)(A) and 
therefore has not demonstrated that the proposed position qualifies for classification as a specialty 
occupation. 
The petitioner's July 12, 2002 letter of support, counsel's January 17, 2003 response to the director's request 
for evidence, and counsel's July 15, 2003 appellate brief all claim CIS has already determined that the 
proposed position is a specialty occupation since it has approved other, similar petitions in the past. To 
support this statement, the record contains over 30 approval notices. This record of proceeding does not, 
however, contain all of the supporting evidence submitted to the Vermont Service Center in these cases. 
In the absence of all of the corroborating evidence contained in the records of their proceedings, the 
documents submitted by counsel are not sufficient to enable the AAO to determine whether the petitions 
were parallel to the position proposed here. Moreover, each nonimmigrant petition is a separate 
proceeding with a separate record. See 8 C.F.R. 8 103.8(d). In making a determination of statutory 
eligibility CIS is limited to the information contained in the record of proceeding. 
See 8 C.F.R. 3 103.2(b)(16)(ii). If the other nonimmigrant petitions were approved based on identical 
facts that are contained in the current record, those approvals would be in violation of paragraph (h) of 
8 C.F.R. 8 214.2, and 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 0 282785 (E.D. La.), afSd, 248 
F.3d 1 139 (5th Cir. 2001), cert. denied, 122 S.Ct 5 1 (2001). 
The AAO next considers the criteria at 8 C.F.R. $8 214.2(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 firms or individuals in the industry attest that such 
EAC 02 253 5 1553 
Page 5 
fms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 151, 
1 165 (D.Minn. 1999Xquoting Hird.Blaker Corp. v. Sava, 7 12 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
Counsel contends that CIS'S November 27,2002 memorandum' (the nurse memo) stated that critical care 
nurses and other specialty care nurses qualify for H-1B classification. Counsel maintains that the 
position proposed here therefore qualifies as a specialty occupation: it is a medical-surgical unit and 
specialty nursing position that entails working in the petitioner's medical-surgical unit. Counsel also 
stresses that the proposed position is not an entry-level job. 
These assertions do not prevail in establishing that the proposed position qualifies as a specialty 
occupation. The nurse memo acknowledged that an increasing number of nursing specialties, such as 
critical care and operating room care, require a higher degree of knowledge and skill than a typical RN or 
staff nurse position. Nevertheless, the mere fact that a nursing position has a title such as "critical care" 
does not necessarily mean that it qualifies for classification as a specialty oc~upation.~ 
As noted previously, CIS looks beyond the title of a proposed position and determines, from a review of 
the duties of the position and any supporting evidence, whether the position actually requires the 
theoretical and practical application of a body of highly specialized knowledge, and the attainment of a 
baccalaureate degree in a specific specialty as the minimum for entry into the occupation as required by 
the Act. While the nurse memo specifically states that a petitioner may be able to demonstrate, through 
affidavits from independent experts or other means, that the nature of the position's duties is so 
specialized and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a bachelor's or higher degree (or its equivalent), CIS maintains discretion to use as advisory 
opinions statements submitted as expert testimony. Matter of Caron International, 19 I&N Dec. 791 
(Comm. 1988). CIS must be satisfied that the ultimate employment of the alien is in a specialty 
occupation, regardless of the position's title 
CIS often looks to the Handbook when determining whether a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into a particular position. After a careful review of 
the Handbook, the AAO finds that the beneficiary's proposed duties closely resemble those performed by 
registered nurses who provide direct patient care by observing, assessing, and recording symptoms, reactions, 
and progress; assisting physicians during treatments and examinations; administering medications; and 
assisting in convalescence and rehabilitation. Hospital nurses, the Handbook states, are mostly staff nurses 
who provide bedside nursing care and carry out medical regiments. These nurses, the Handbook reports, are 
usually assigned to one area, such as surgery, maternity, or intensive care. As such, the proposed position's 
duty to care for patients in the medical-surgical unit who have had serious operations or serious medical 
problems, and who have also had complications caused by these problems, would be performed by a 
registered nurse as illustrated in the Handbook. 
2 It is worth noting that the nurse memo also mentions that certification examinations are available to such 
registered nurses who may work in such nursing specialties and possess additional clinical experience, but 
who are not advanced practice nurses. 
EAC 02 253 51553 
Page 6 
The Handbook states the following regarding the training and educational requirements for registered nurse 
positions: 
There are three major educational paths to registered nursing: associate degree in nursing 
(A.D.N.), bachelor of science degree in nursing (B.S.N.), and diploma. . . . Generally, 
licensed graduates of any of the three program types qualify for entry-level positions as 
staff nurses. 
The Handbook continues: 
. . . [Slome career paths are open only to nurses with bachelor's or advanced 
degrees. A bachelor's degree is often necessary for administrative positions, and it is a 
prerequisite for admission to graduate nursing programs in research, consulting, teaching, 
or a clinical specialization. 
T~LIS, according to the Handbook, candidates for the proposed position would not require a bachelor's degree 
for entry into the occupation. 
The evidence contained in the record fails to persuade the AAO that a baccalaureate degree in a specific 
specialty is the minimum standard for entry into this occupation. The petitioner asserts that the V.A. has 
determined that registered nurse positions are specialty occupations because only candidates holding 
bachelor's degrees can occupy such positions at its facilities. This assertion is not persuasive. First, the 
V.A. document entitled "Nurse Qualification Standard" revised the policy on the qualification standard 
for all persons appointed as registered nurses, but it does not establish that a baccalaureate or higher 
degree or its equivalent is the normal minimum for entry into the position. For example, Appendix B of 
the document does not elaborate on whether the grade of nurse I (levels 1-3), which requires either 
associate's or bachelor's degrees in nursing, are registered nurse positions assigned to a hospital's 
surgery, emergency care, maternity, or intensive care units. 
The December 18, 1998 press release reveals that the V.A. and the American Association of Colleges of 
Nursing (AACN) simply seek to provide nurses with innovative academic opportunities to obtain 
baccalaureate or higher degrees in a convenient setting. On page 2, the press release stated that only 3 1 
percent of registered nurses hold bachelor's degrees, and 32 percent hold associate's degrees, which 
indicates plainly that a bachelor's degree is not the minimum requirement for entry into the proffered 
position. Furthermore, the Handbook reveals that employers accept candidates with associate degrees in 
nursing. Thus, based upon the evidence in the record, the petitioner has failed to establish the first 
criterion at 8 C.F.R. Fj 2 14.2(h)(4)(iii)(A). 
The evidence in the record fails to establish the second criterion - that a degree requirement is common to 
the industry in parallel positions among similar organizations. The nurse memo and the V.A. documents 
are not probative in establishing the second criterion. Again, the mere fact that a nursing position has a 
title such as "critical care" does not mean that it qualifies as a specialty occupation. The deficiencies in 
the V.A. document and its December 18, 1998 press release have already been set forth. The JAM 
article simply discusses the patient-to-nurse ratio in hospitals. Counsel's February 5, 2003 letter stated 
the following: 
The present industry standard, for medical facilities employing registered nurses in these 
units, is baccalaureate degree in nursing preferred [emphasis in original]. 
EAC 02 253 5 1553 
Page 7 
The letter continued: 
Because of the great need, hospitals and other medical facilities cannot adopt a 
policy that requires a baccalaureate degree. However, they will take a baccalaureate 
nurse over an associate degree nurse for these positions [emphasis in original]. 
There is no evidence to support the statement that "they will take a baccalaureate nurse over an associate 
degree nurse." Moreover, the quoted statements from counsel emphasize that a bachelor's degree is not an 
industry-wide requirement. An industry preference for a bachelor's degree is not synonymous with an 
industry standard, and does not rise to the "normally required" criterion imposed by the regulation. The 
other evidence in the record - the V.A. documents and the AACN and JAM articles - also fail to 
establish the second criterion: that the industry requires a bachelor's degree. 
Counsel contends on appeal that his response to the director's request for evidence included "industry job 
announcements." However, the AAO notes that these job announcements are not contai~ied in the record. 
Counsel has submitted three letters in support of his contention that the vrovosed vosition aualifies for 
A . . 
classification as a specialty occupation: one 
M.D., and one M.D. The AAO notes that, other than the first few paragraphs 
which introduce the qualifications of the signer, the wording of each letter is identical. This raises the 
question as to whether these letters were in fact written by the persons signing them, or whether the petitioner 
provided the signers with templates that were simply printed on letterhead and signed. Nor were any of 
these letters dated. The AAO 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, the AAO is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm. 1988). Accordingly, the evidentiary weight of these letters is 
diminished. 
Neither does the record contain evidence to establish that the particular position is so complex or unique 
that only a person with a bachelor's degree can perform it. 
The proposed position does not qualie as a specialty occupation under 8 C.F.R. $ 214.2(hX4Xiii)(AX3), 
which requires a showing that the petitioner normally requires a degree or its equivalent for the position. To 
determine a petitioner's ability to meet this 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. However, no 
evidence has been submitted to demonstrate that the proposed position qualifies under this criterion. 
In order to establish eligibility under this criterion, the petitioner must demonstrate that it normally hires 
individuals with a bachelor's degree or its equivalent for the position, and evidence to support the assertion 
must be presented. 
However, no such evidence has been presented. 
The evidence in the record is inadequate to establish that the nature of the specific duties is so specialized 
and complex that the knowledge required to perform the duties is usually associated with the attainment 
of a baccalaureate or higher degree. 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4). Counsel refers to the nurse memo 
EAC 02 253 5 1553 
Page 8 
to state that critical care and other specialty nurse positions, such as the proffered position, require a 
bachelor's degree. Again, the title of a nursing position such as "critical care" or "medical-surgical unit" 
does not mean that the position qualifies as a specialty occupation. Rather, the actual duties of the 
proposed position are controlling. 
The article from the JAM and the information about degreed nursing programs are irrelevant in 
establishing that the proposed position requires a bachelor's degree in nursing. The article merely 
discussed improving the nurse-to-patient ratio. The materials from Nazareth College contain only a 
listing of courses, and the materials from Kent State University are "suggested" courses only; thus these 
items are not probative. 
Counsel alleges that CIS approves H-1B classification for beneficiaries seeking registered nurse positions 
in the State of North Dakota, while discriminatorily denying this classification to beneficiaries seeking 
registered nurse positions in the State of West Virginia. Counsel states that because a registered nurse 
position in the two states has essentially the same specialized and complex duties, the registered nurse 
positions in both states should be considered specialty occupations. 
The allegation of discrimination is not persuasive. According to the nurse memo, the National Council on 
State Boards of Nursing (NCSBN) had previously confirmed that the state of North Dakota was the only 
state that required that an individual possess a bachelor of science in nursing (BSN) in order to be 
licensed as a registered nurse in that state. According to the nurse memo, in a situation in which the BSN 
is a prerequisite to practicing in the field, the position will qualify as an H-1B position. While the nurse 
memo specifically provided that "a position for an RN position in the state of North Dakota will generally 
qualify as an H-1B position due to the degree requirement for licensure," effective August 1, 2003, the 
State of North Dakota no longer requires a BSN for licensure by examination. The state is now required 
to "adopt rules establishing standards for the approval of out-of-state nursing education programs," which 
may include non-BSN nursing education. Section 43-12.1-09 of the North Dakota Nurse Practices Act. 
Accordingly, a position for a registered nurse within the state of North Dakota is no longer automatically 
considered an H-1B position because the degree requirement no longer exists. Thus, counsel's argument 
is moot. 
Counsel claims that CIS is requiring that the petitioner establish all four criteria set forth at 
8 C.F.R. f~ 214.2(h)(4)(iii)(A). However, this is not the case. The director's denial letter considered the 
evidence in the record and the duties of the proposed position to determine whether the petitioner satisfied 
any one of the four criteria. No language in the denial letter indicated that the director required that the 
petitioner establish all four criteria. 
Accordingly, the petitioner has failed to establish that the proposed position is a specialty occupation, and 
the petition was properly denied on this ground. 
The director also found that the beneficiary is not qualified to perform the duties of the proffered position. 
The AAO concurs with this finding. 
According to the Handbook, all states and the District of Columbia require that students graduate fiom an 
approved nursing program and pass a national licensing examination. 
Section 214(i)(2) of the Act, 8 U.S.C. 8 1184(i)(2), states that an alien applying for classification as an 
H-1B nonimmigrant worker must possess full state licensure to practice in the occupation, if such 
EAC 02 253 5 1553 
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licensure is required to practice in the occupation, and completion of the degree in the specialty that the 
occupation requires. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(v)(A), if an occupation requires a state or local license for an 
individual to fully perform the duties of the occupation, an alien seeking H classification in that 
occupation must have that license prior to the approval of the petition to be found qualified to enter the 
United States and immediately engage in employment in the occupation. 
No evidence in the record indicates that the beneficiary possesses a license to practice as a registered 
nurse or has passed a national licensing examination. Counsel claims that the State of West Virginia does 
not offer the licensing examination outside of the United States but that the beneficiary will be able to 
take the examination soon after entering the United States. Counsel attests that the U.S. consulate in the 
Philippines waives the requirement that the beneficiary possess licensure to work immediately upon entry 
into the United States. 
Counsel's claims are not convincing. A May 4, 1992 nlemorandum entitled "Temporary Licensure for 
H-1B Nonimmigrants" and issued by Lawrence J. Weinig, Acting Assistant Commissioner, stated that the 
intent of the regulation at 8 C.F.R. Fj 214.2(h)(4)(v)(A) is not to deny petitions where a license is required 
solely because the beneficiary did not possess the required physical presence in the United States 
necessary to obtain licensure. CIS will approve initial H-IB petitions where the alien is otherwise 
qualified but lack of physical presence in the United States is the sole bar to obtaining temporary 
licensure. However, the petitioner must submit an official statement from the licensing authority which 
clearly indicates that the alien is eligible for temporary licensure and that the license can be obtained 
immediately upon entering the United States and, if required, registering for the state's next licensing 
examination and paying the appropriate fee. 
The record does not contain an official statement from the licensing authority that indicates that the 
beneficiary is eligible for temporary licensure and that the license can be obtained immediately upon 
entering the United States. Thus, the AAO agrees with the director that the beneficiary does not qualify 
to perform the duties of the proposed position. 
The proposed position does not qualify as a specialty occupation, and the beneficiary does not qualify to 
perform the duties of a specialty occupation. Accordingly, the AAO will 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 not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.