dismissed H-1B Case: Medicine

(b)(6)
DATE: 
INRE: 
PETITION : 
JUL 0 8 2015 
Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.s.· Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form l-290B web page (www.uscis.gov/i -290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to tbe AAO . 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the California 
Service Center. In the supporting documents, the petitioner describes itself a cosmetic surgery and 
skin care practice that was established in In order to employ the beneficiary in what it 
designates as a patient coordinator position, the petitioner seeks to classify her 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 reviewed the record of proceeding and determined that the petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the petitioner had not 
established that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory. The Director denied the petition. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B) and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 2 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. SPECIALTY OCCUPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary 
in a specialty occupation position. 
A. Legal Framework 
For an H-lB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
1 In its letter of support, the petitioner states that it has four full-time and three part-time employees. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In 
conducting our review, we apply the "preponderance of evidence" standard of review as articulated in the 
controlling precedent decision, Matter ofChawathe, 25 l&N Dec. 369, 375-376 (AAO 2010). Accordingly, 
we have examined each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence. 
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regard, the petitioner must establish that the employment it is offering to {he beneficiary meets the 
applicable statutory and regulatory requirements. 
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 regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (I)] 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 [(2)) 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, a proposed 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 
(4) The nature of the specific duties [is] so specialized and complex that a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design ofthe statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-
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F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 387. To avoid this result, 8 C .F.R. 
§ 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that must be met in 
accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty 
occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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 . users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. 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. 
B. Proffered Position 
In the Form I -129, the petitioner stated that it wishes to employ the beneficiary as a patient 
coordinator on a full-time basis. In the support letter, the petitioner provided the following 
description of the proffered position: 
• Coordinate communication between predominately Japanese speaking patients, 
family members, medical and administrative staff- 40% 
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• Interview patients or their representatives to identify potential and perceived 
problems relating to care- 15% 
• Maintain knowledge of medical and follow-up care resources available to patients -
5% 
• Refer patients to appropriate health care services or resources for pre-operative 
preparation and post-operative care- 15% 
• Investigate and direct patient inquiries or complaints to appropriate medical staff 
members and 
follow up to ensure satisfactory resolution- 2% 
• Explain policies, procedures, or services to patients using medical and administrative 
knowledge- 1 0% 
• Provide consultation or training to staff on topics such as guest relations, patients' 
rights, and medical issues relating to cosmetic surgical procedures- 6% 
• Collect and report data on topics such as patient encounters and inter-institutional 
problems, making 
recommendations for change when appropriate- 3% 
• Read current literature, talk with colleagues, continue education, or participate in 
professional organizations or conferences to keep abreast of developments in the field 
of cosmetic surgery- 2% 
• Identify and share research, recommendations, or other information regarding legal 
liabilities, risk management, or quality of care- 2% 
According to the petitioner, the position requires a bachelor's degree in medicine and a background 
in the application of cosmetic surgical procedures. 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A){l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
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USCIS recognizes the Handbook as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.3 The petition~r asserted in the 
Labor Condition Application (LCA) that the proffered position falls under the occupational category 
"Customer Service 
Representatives. "4 
We reviewed the section of the Handbook regarding this occupational category, including the section 
entitled "How to Become a Customer Service Representative," which states the following: 
Customer service representatives typically need a high school diploma and receive 
on-the-job training to learn the specific skills needed for the job. They should be good 
at communicating and interacting with people and have basic computer skills. 
Education 
Customer service representatives typically need a high school diploma. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Customer Service Representative, available on the Internet at http://www.bls.gov/oohloffice-and­
administrative-support/customer-service-representatives.htm#tab-4 (last viewed June 15, 20 15). 
According to the Handbook, customer service representatives typically need a high school diploma 
for these positions. The Handbook reports that such positions usually receive on-the-job training to 
learn the specific skills needed for the job. Thus, the Handbook does not support the assertion that a 
bachelor's degree or higher in a specific specialty (or its equivalent) is required. 
On appeal, the petitioner states that it did not intend to designate the proffered position under the 
broad occupational category "Customer Service Representatives" but, rather, it intended to designate 
the position under the more detailed occupation "Patient Representatives. "5 
3 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/OCO/ . The excerpts of the Handbook regarding the duties and requirements of the 
referenced occupational category are hereby incorporated into the record of proceeding. 
4 
Based upon the information provided by the petitioner, it appears that the duties of the position require 
knowledge of Japanese . In accordance with the guidance provided by DOL, a language requirement other 
than English in a petitioner's job offer generally is considered a special skill for all occupations (with the 
exception of "Foreign Language Teachers and Instructors," "Interpreters," and "Caption Writers") and should 
be reflected in the wage level. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert .doleta.gov/pdf/NPWHC _Guidance_ Revised _ 11_ 2009.pdf. 
5 The Standard Occupational Classification (SOC) system classifies workers at four levels of aggregation : (1) 
major group; (2) minor group; (3) broad occupation; and ( 4) detailed occupation. Occupations with similar 
skills or work activities are grouped at each of the four levels of hierarchy to facilitate comparisons. Each 
item in the hierarchy is designated by a six-digit code. The hyphen between the second and third digit is used 
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The Handbook does not contain a detailed report for "Patient Representatives." Although 
employment categories for hundreds of occupations are covered in detail in the Handbook, in certain 
instances, the Handbook is not determinative. When the Handbook does not support the proposition 
that a proffered position is one that meets the statutory and regulatory provisions of a specialty 
occupation, it is incumbent upon the petitioner to provide persuasive evidence that the proffered 
position more likely than not satisfies this or one of the other three criteria, notwithstanding the 
absence of the Handbook's support on the issue. In such case, it is the petitioner's responsibility to 
provide probative evidence (e.g., documentation from other objective, authoritative sources) that 
supports a finding that the particular position in question qualifies as a specialty occupation. 
Whenever more than one authoritative source exists, an adjudicator will consider and weigh all of 
the evidence presented to determine whether the particular position qualifies as a specialty 
occupation. 
On appeal, the petitioner cites the Occupational Information Network (O*NET) Summary Report for 
Patient Representatives - SOC code 43-4051.03, referenced in the FLC Data Center's Online Wage 
Library (OWL), which states: Education and Training Code: No Level Set. As no level has been set 
for the education and training code, this aspect of the report does not support the petitioner's 
assertion that the occupation has any specific academic requirements . 
Next, we observe that within the report, the occupation is assigned a Specific Vocational Range 
(SVP) of "from 7 to less than 8" (7.0 < 8.0) and a Job Zone of "Four." O*NET Online provides 
general information regarding the tasks and work activities associated with a particular occupation, 
as well as the education, training, and experience required to perform the duties of that occupation. 
An SVP rating is meant to indicate only the total number of years of vocational preparation required 
for a particular occupation. An SVP rating of 7 does not indicate that at least a four-year bachelor's 
degree is required for an occupational category that has been assigned such a rating or, more 
importantly, that such a degree must be in a specific specialty closely related to the 
only for presentation clarity . The first two digits of the SOC code represent the major group; the third digit 
represents the minor group; the fourth and fifth digits represent the broad occupation; and the detailed 
occupation is represented by the sixth digit. Major group codes end with 0000, minor groups end with 000, 
and broad occupations end with 0. When detail is needed to measure additional worker characteristics, a 
decimal is used to split a defined occupation into more detailed occupations. For example : 
43-0000 Office and Administrative Support Occupations 
43-4000 Information and Record Clerks 
43-4050 Customer Service Representatives 
43-4051.00 Customer Service Representatives 
43-4051.03 Patient Representatives 
Thus, for Patient Representatives , the major group is Office and Administrative Support Occupations. The 
minor group occupation is Information and Record Clerks, and the broad occupation is Customer Service 
Representatives . 
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occupation. Rather, the SVP rating simply indicates that the occupation requires between 2+ years 
and 4 years of training. 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 
particular position would require. 
Further, a Job Zone 4 indicates that such occupations require considerable preparation. The 
designation does not, however, demonstrate that a bachelor's degree in a specific specialty is 
required, and does not, therefore, demonstrate that a position so designated qualifies as a specialty 
occupation as defined in section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). More 
specifically, the OWL statement is a condensed version of what the O*NET actually states about its 
Job Zone 4 designation. See O*NET OnLine Help Center, at 
http://www.onetonline.org/help/online/zones, for a discussion of Job Zone 4, which explains that this 
Zone signifies only that most but not all of the occupations within it require a bachelor's degree. 
Further, the Help Center's discussion confirms that Job Zone 4 does not indicate any requirements 
for particular majors or academic concentrations. Therefore, without more, the OWL and O*NET 
information is not probative ofthe proffered position qualifying as a specialty occupation. 
It is incumbent upon the petitioner to provide persuasive evidence that the proffered position 
qualifies as a specialty occupation under this criterion. The regulation at 8 C.F.R. § 214.2(h)(4)(iv) 
provides that "[a]n H-IB petition involving a specialty occupation shall be accompanied by 
[d]ocumentation ... or any other required evidence sufficient to establish ... that the services the 
beneficiary is to perform are in a specialty occupation." In the instant case, the duties and 
requirements of the position as described in the record of proceeding do not indicate that this 
particular position proffered by the petitioner is one for which a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the 
petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
Thus, the Handbook, OWL and O*NET do not support the claim that the occupational category is 
one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
specific specialty, or its equivalent. Even if it did, the record lacks sufficient evidence to support a 
finding that the particular position proffered here would normally have such a minimum, specialty 
degree requirement or its equivalent. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
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Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and also 
(3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 firms "routinely employ 
and recruit only de greed individuals." See Shanti, Inc. v. Reno, 3 6 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
The petitioner submitted copies of job advertisements in support of the assertion that the degree 
requirement is common to the petitioner's industry in parallel positions among similar organizations. 
However, the petitioner's reliance on the job announcements is misplaced. 
The petitioner describes itself as a cosmetic surgery and skin care practice with seven employees. 
The petitioner also reported its gross annual income as approximately $1 million and its net annual 
income is approximately, $108,000. The petitioner designated its business operations under the 
North American Industry Classification System (NAICS) code 62111.6 This NAICS code is 
designated for "Offices of Physicians." The U.S. Department of Commerce, Census Bureau website 
describes this NAICS code by stating the following: 
This industry comprises establishments of health practitioners having the degree of 
M.D. (Doctor of Medicine) or D.O. (Doctor of Osteopathy) primarily engaged in the 
independent practice of general or specialized medicine (e.g., anesthesiology, 
oncology, ophthalmology, psychiatry) or surgery. These practitioners operate private 
or group practices in their own offices (e.g., centers, clinics) or in the facilities of 
others, such as hospitals or HMO medical centers. 
6 According to the U.S. Census Bureau, theNorth American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.census.gov/eos/www/naics/ (last viewed July 1, 2015). 
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U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 62111 - Offices of 
Physicians, on the Internet at http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last viewed July 1, 
2015). 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
petitioner. 
We will briefly note that the posting for states that it is a 
national nonprofit organization. Thus, without more, it does not appear to be an organization similar 
to the petitioner . When determining whether the petitioner and the organization share the same 
general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). It is not sufficient for the petitioner 
to claim that an organization is similar and in the same industry without providing a legitimate basis 
for such an assertion. Going on 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'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
In addition, contrary to the purpose for which the advertisements were submitted, most of the job 
postings do not indicate that a bachelor's degree is required. For example: 
• requires a degree from an accredited school for a licensed 
practical nurse and two years of operating room experience; 7 
• requires a diploma/associates degree in nursing and two 
years of directly related experience; 
• requires a degree from an accredited school of 
nursing, although a bachelor's degree is preferred. A "preference" does not 
indicate that a bachelor's degree is required for the advertised position; and 
• requires a diploma/certificate/QED 
and two years of related experience. 
7 The Handbook states that there are three usual paths of education for registered nurses: a bachelor's of 
science degree in nursing (BSN), an associate's degree in nursing (ADN), or a diploma from an approved 
nursing program. The Handbook further reports that ADN and diploma programs usually take 2 to 3 years to 
complete. For additional information on registered nurses, see U.S. Dep't of Labor, Bureau of Labor 
Statistics, Occupational Outlook Handbook, 2014-15 ed., Registered Nurses, available on the Internet at 
http://www.bls.gov/ooh/Healthcare/Registered-nurses.htm#tab-4 (last viewed July 1, 20 15). 
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Further, the posting for _ states that a degree is required, but it 
does not indicate that at least a bachelor's degree m 
a directly related specific specialty (or its 
equivalent) is required. 8 
The job postings suggest, at best, that a bachelor's degree is sometimes required for the position but 
not at least a bachelor's degree in a specific specialty (or its equivalent). 9 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 10 That is, not every deficit of every job posting has been addressed. 
8 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1B program is 
not just a bachelor's or higher degree, but a degree in a specific specialty that is directly related to the duties of 
the position. See 214(i)(l)(b) ofthe Act and 8 C.F.R. § 214.2(h)(4)(ii) . 
In addition, although a general-purpose bachelor's degree may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justify a finding that a particular position qualifies 
for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. Specifically, 
the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
I d. 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 F .Supp.2d 
172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of Michael Hertz 
Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited analysis in 
connection with a conceptually similar provision). This is as it should be: elsewise, an 
employer could ensure the granting of a specialty occupation visa petition by the simple 
expedient of creating a generic (and essentially artificial) degree requirement. 
9 Even if all of the job postings indicated that a bachelor's degree in a specific specialty, or its equivalent, is 
common to the industry in parallel positions among similar organizations (which they do not), the petitioner 
does not demonstrate what inferences, if any, can be drawn from these advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. 
See generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher 
degree in a specific specialty, or its equivalent (for organizations in the same industry that are similar to the 
petitioner), it cannot be found that such a limited number of postings that appear to have been consciously 
selected outweigh the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not normally require at least a baccalaureate degree in a specific specialty, or its equivalent, for 
entry into the occupation in the United States. 
10 
The petitioner did not provide any independent evidence of how representative the job postings are of the 
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The petitioner has not established that a requirement of a bachelor's or higher degree in a specific 
specialty, or its equivalent, is common to the petitioner's industry in positions that are (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the petitioner. For the reasons discussed above, the petitioner has not satisfied the first 
alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the. petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner described the proffered position and its business operations. Upon review, we find that the 
petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. For instance, the petitioner did not submit information relevant to a detailed 
course of study leading to a specialty degree and did not establish how such a curriculum is 
necessary to perform the duties it asserts are so complex and unique. While a few related courses 
may be beneficial in performing certain duties of the position, the petitioner has not demonstrated 
how an established curriculum of such courses leading to a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required to perform the duties of the proffered position. The 
description of the duties does not specifically identify any tasks that are so complex or unique that 
only a specifically degreed individual could perform them. The record does not establish which of 
the duties, if any, of the proffered position would be so complex or unique as to be distinguishable 
from those of similar but non-degreed or non-specialty degreed employment. 
The petitioner claims that the beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The petitioner has not satisfied the second 
alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
particular advertising employers' recruiting history for the type of job advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 
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The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-1B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)(l) ofthe Act; 8 C.P.R.§ 214.2(h)(4)(ii) 
· (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of 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 USCIS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of demanding 
certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a specific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
The petitioner stated in the Form I-129 petition that it has seven employees and that it was 
established in (approximately fourteen years prior to the filing of the H-1B petition). In 
response to the RFE, the petitioner submitted an organizational chart. The chart indicates that three 
individuals serve as patient coordinators. Upon review, we note that the petitioner did not provide 
the total number of people it has employed to serve in the proffered position . Consequently, it 
(b)(6)
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cannot be determined how representative the petitioner's claim regarding three individuals over a 14 
year period is of the petitioner's normal recruiting and hiring practices. 
Moreover, we note that the credentials of these three individuals are written on the organization chart 
as follows: (1) bachelor's degree in progress; (2) associate's degree; and (3) bachelors of science. 
The petitioner further indicated on the chart that the individuals possess related experience. 11 No 
further information regarding the individuals' credentials and experience was provided. The 
petitioner claims the individuals possess a bachelor's degree or its equivalent in combined academic 
study and years of experience. We observe that the petitioner makes an assertion, but does not 
provide any supporting authority or any empirical basis for the pronouncement. Without more, the 
record lacks evidence establishing the equivalency of the individuals' credentials to support the 
petitioner's claim that they possess at least a baccalaureate degree in a specific specialty, or its 
equivalent, and related experience. 
Further, the petitioner did not provide the job duties and day-to-day responsibilities of the positions 
that it claims are the same as the proffered position. The petitioner also did not submit any 
information regarding the complexity of the job duties, supervisory duties (if any), independent 
judgment required or the amount of supervision received. Accordingly, aside from job title, it is 
unclear whether the duties and responsibilities of these individuals are the same or similar to the 
proffered position. 
The petitioner did not provide documentary evidence to support the assertion that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, directly related to the 
duties of the position. The petitioner has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
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 in a specific specialty, or its equivalent 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that 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 in a specific specialty, or 
its equivalent. 
11 Upon review of the submission, we note that the petitioner did not submit: 
(1) documentary evidence to demonstrate that the individuals are employed by the 
petitioner (e.g., pay statements, Form W-2 Wage and Tax Statements); 
(2) evidence demonstrating that they are employed in the same or similar positions as the 
proffered position; 
(3) documentation regarding the individuals' credentials (e.g., diplomas, transcripts); and 
( 4) evidence verifying the individuals "related experience." 
(b)(6)
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The petitioner claims that the nature of the specific duties of the position in the context of its 
business operations 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 a specific specialty, or 
its equivalent. We reviewed the petitioner's statements regarding the proffered position and its 
business operations. However, relative specialization and complexity have not been sufficiently 
developed by the petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and complex 
than positions that are not usually associated with at least a bachelor's degree in a specific specialty, 
or its equivalent. 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion ofthe regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.