dismissed H-1B Case: Mental Health Counseling

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 17, 2024 In Re: 34099169 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both: (a) the theoretical and practical application 
of a body of highly specialized knowledge; and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding the record did not 
establish the Petitioner's proffered job qualified as a specialty occupation under section 
101(a)(15)(H)(i)(b) of the Act and the Department of Labor (DOL) certified labor condition 
application (LCA) did not correspond to the Petitioner's proffered job. The matter is now before us 
on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
"Specialty Occupation" is defined as an occupation that requires: (A) the 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. See section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) . 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered 
position must also meet one of the following criteria to qualify as a specialty occupation: 
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 pos1t10ns 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. 
USCIS analyzes the employer's prior practice, as well as the industry norm for parallel positions, to 
assure that a petitioner's requirements do not merely state a degree requirement or its equivalent in a 
specific specialty when such a degree is not actually required to perform the proffered job duties. 
See Matter of Caron International, Inc., 191 I&N Dec. 791, 793-794 (BIA 1988) The burden of 
proof to establish eligibility under the statute and regulation is squarely a petitioner's alone. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 145 (1st Cir. 2007) ("The burden of proving that a particular 
position comes within this taxonomy (and thus qualifies as a specialty occupation) is on the 
applicant."). 
Moreover, job title or broad occupational category alone does not determine whether a particular job 
is a specialty occupation under the regulations and statute. The nature of a petitioner's business 
operations along with the specific duties of the proffered job are also considered. We must evaluate 
the employment of the individual and determine whether the position qualifies as a specialty 
occupation. See Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). So, a petitioner's self-imposed 
requirements are not as critical as whether the nature of the offered position requires the application 
of a theoretical and practical body of knowledge gained from earning the required baccalaureate or 
higher degree in the specific specialty required to accomplish the duties of the job. 
The statute and regulations must be read together to ensure the proffered position meets the definition 
of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statute as a whole is preferred); 
see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations separately 
could lead to scenarios where a petitioner satisfies a regulatory factor, but not the definition of 
specialty occupation contained in the statute. See Defensor, 201 F.3d at 387. The regulatory criteria 
read together with the statute gives effect to the statutory intent. See Temporary Alien Workers 
Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 
2, 1991). 
So, we construe the term "degree" in 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate 
or higher degree or its equivalent, but one in a specific specialty that is directly related to the proffered 
position supporting the statutory definition of specialty occupation or its equivalent. See Royal Siam 
Corp., 484 F.3d at 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"). USCIS' 
application of this standard has resulted in the orderly approval of H-lB petitions for engineers, 
certified public accountants, information technology professionals, and other occupations 
commensurate with what Congress intended when it created the H-lB category. 
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And job title or broad occupational category alone does not determine whether a particular job is a 
specialty occupation under the regulations and statute. The nature of a petitioner's business operations 
along with the specific duties of the proffered job are also considered. We must evaluate the 
employment of the individual and determine whether the position qualifies as a specialty occupation. 
See Defensor, 201 F.3d 384. So, a petitioner's self-imposed requirements are not as critical as whether 
the nature of the position the petitioner offers requires the application of a theoretical and practical 
body of knowledge gained after earning the required baccalaureate or higher degree in the specific 
specialty required to accomplish the duties of the job. 
II. ANALYSIS 
The Petitioner filed its petition seeking to employ the Beneficiary as a bilingual case manager and it 
submitted a labor condition application (LCA) certified for a position in the mental health counselor 
occupational category. The Director may request additional evidence when determining eligibility for 
the requested benefit. 8 C.F.R. § 103.2(b)(8). In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 8 C.F.R. 
§ 103.2(b)(l). 
The Director reviewed the initial petition and issued a request for evidence (RFE) providing the 
Petitioner with an opportunity to address its eligibility for petition validity beyond the six-year 
maximum period of H-lB stay described in the statute and regulations as well as whether the 
Petitioner's proffered position required the incumbent to possess a license issued by the 
Commonwealth of Massachusetts. The Director also issued another RFE subsequently to elicit 
additional evidence from the Petitioner to demonstrate that its proffered job was a specialty 
occupation. The Petitioner timely responded to both requests. The Director denied the petition 
because the record did not contain material, relevant, or probative evidence to demonstrate the 
Petitioner's bilingual case manager is a specialty occupation. We agree. 
The Petitioner's inconsistent expression of the proffered position's mm1mum educational 
requirements raises questions as to the proffered position's substantive nature. Initially the Petitioner 
stated the minimum entry requirement for its bilingual case manager position is a bachelor's degree in 
psychology or a related field. But the letter from the Commonwealth of Massachusetts' Executive 
Office of Health and Human Services, Office of Medicaid the Petitioner submitted into the record 
contained discordant information reflecting that "case managers" in the Commonwealth of 
Massachusetts were required to simply hold "a bachelor's degree." This was problematic because the 
document referred to "case manager" positions and not bilingual case managers like the proffered job 
here. But even if that seeming discrepancy was put aside (because we do not consider job title to be 
determinative to the question of whether a position is a specialty occupation) the minimum 
requirement for "a bachelor's degree" without specifying any specialty tends to reflect the minimum 
requirement to entry for the position is a token bachelor's degree requirement. 
The Petitioner also referred to the letter from the Commonwealth of Massachusetts' Executive Office 
of Health and Human Services, Office of Medicaid to support its assertion that the proffered position 
did not require a license. As the Director indicated, the Department of Labor's Occupational Outlook 
Handbook ("Handbook") states "All states require mental health counselors to be licensed." See 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Substance Abuse, 
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Behavioral Disorder, and Mental Health Counselors (Sept. 27, 2024), 
https ://www. b ls. gov/ ooh/ community-and-social-service/ substance-abuse-behavioral-disorder-and­
mental-health-counselors .htm. The evidence contained in the record does not materially, relevantly, 
or probatively establish by a preponderance of the evidence that the Petitioner's proffered job can be 
performed without a license. The letter does not provide a description of the "case managers" who 
performance of job duties would be permitted under the supervision of licensed personnel at 
authorized institutions. Without a description or statement of the scope of duties contemplated for 
professionals permitted to perform job duties that would ordinarily require a license, we are unable to 
compare the Petitioner's description of its proffered position to evaluate its true nature and contours 
so that we can evaluate its eligibility for classification as a specialty occupation. 
And the evidence the Petitioner subsequently submitted in response to the Director's RFE requesting 
clarification did not ameliorate the incongruities. For example, the Petitioner submitted the U.S. 
Department of Labor's non-dispositive list of professional occupations that customarily requires a 
bachelor's or higher degree to substantiate the specialty nature of their proffered bilingual case 
manager position requiring a minimum of a bachelor's degree in psychology or related for entry. See 
Appendix A to the Preamble-Education and Training Categories by O*NET-SOC Occupations; Labor 
Certification for the Permanent Employment of Aliens in the United States; Implementation of New 
System, 69 Fed. Reg. 77326 (Dec. 27, 2004). 1 But whilst the occupations in Appendix A may require 
a bachelor's degree for entry to the position, the list does not specify what, if any, specialty is required 
to enter into the occupation. Or in other words, being listed amongst the occupations in the appendix 
does not adequately establish that a particular job is a specialty occupation because it does not describe 
what body of theoretical or practical knowledge composing a specialty ordinarily gained after having 
completed a baccalaureate or its equivalent is required to perform the occupation's duties. 
In response to an RFE requesting clarification about the proffered job, its duties, and eligibility for 
classification as a specialty occupation, the Petitioner also submitted several documents into the record 
entitled "requisition" which expanded the minimum educational requirement for entry into case 
manager positions with the Petitioner from a bachelor's degree in psychology to other seemingly 
disparate degree fields like sociology, "human services," and social work. The record did not contain 
any evidence that the Petitioner's desired degree fields of sociology, "human services," and social 
work are related to psychology. Moreover, the "requisitions" did not adequately describe how 
psychology, sociology, "human services," and social work are related to one another and to the 
bilingual case manager job duties to provide a body of theoretical or practical knowledge comprising 
a specialty. 
The advertisements the Petitioner submitted to bolster its claimed minimum educational requirement 
of a bachelor's degree in psychology or related as a minimum requirement for entry to the proffered 
position suffer from the same infirmity as the Petitioner's "requisitions." None of the job 
advertisements the Petitioner submitted were seeking bilingual case managers. But, again, setting 
aside the job title, the advertisements reflected an array of educational and experiential requirements 
for entry to the advertised positions. For example, the requirements ranged from baccalaureate degrees 
1 The list has since been updated as described in Update to Appendix A to the Preamble-Education and Training Categories 
by O*NET-SOC Occupations; Labor Certification for Permanent Employment of Immigrants in the United States and 
Procedures To Establish Job Zone Values When O*NET Job Zone Data Are Unavailable, 86 Fed. Reg. 63070 (Nov. 15, 
2021). 
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in "human services," counseling, social work, psychology, to any bachelor's degree combined with 
work experience with a preference for master's level education. Moreover, the record did not 
sufficiently establish the background of the employers advertising the positions such that one could 
ascertain that they were similar to the Petitioner. 
The Petitioner submitted 16 individual resumes of"case managers" into the record to demonstrate the 
bilingual case manager position's eligibility for classification as a specialty occupation. But the 
resume submissions contributed to an atmosphere of haziness about the nature of the proffered position 
and its requirements. For example, of the 16 individual resumes, only two related to individuals 
employed by the Petitioner as bilingual case managers. The remainder spanned vast and varied jobs 
identified as "case manager," "case coordinator," "direct support professional," "recreational 
coordinator," "clinical case coordinator," "assistant program director," and "community based job 
coach." Moreover, the resumes did not contain adequate description of the work the individuals 
performed and the minimum requirements for the positions they occupied to evaluate the specialty 
nature of the proffered bilingual case manager position. And the educational credentials for the 
individuals employed by the Petitioner in the diverse positions listed in the resumes varied between 
baccalaureate credentials in psychology, counseling, "human services," social work, and guidance 
counseling. The resumes did not persuasively constitute evidence of a tangible specialty arising from 
these disciplines based in theoretical and practical knowledge ordinarily gained after earning a 
baccalaureate level of education or its equivalent in that specialty. 
And the Petitioner also submitted an expert opinion letter that focused mainly on the bilingual case 
manager's job duties, and the applicability of psychology or a related field to the proffered job duties. 
But the author did not discuss any one of the constellations of other degree fields ( social work, "human 
services," guidance counseling, counseling) would comprise a body of theoretical and practical 
knowledge amounting to a specialty required to perform the duties of the proffered direct care 
professional position. In fact, aside from references to "related" degree fields or a passing reference 
to "counseling" as a related field, the opinion did not sufficiently establish the relatedness of the 
Petitioner's diverse degree fields to the field of psychology, to one another, and to the duties of the 
position. Additionally, we note that the author of the expert opinion possesses a doctorate degree and 
master's degree in human resource development and human resource management respectively. The 
evidence in the record does not persuasively establish the applicability of the writer's background to 
their opinion regarding the nature and requirements of the Petitioner's bilingual case manager position. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. 
Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). The submission of expert opinion 
letters is not presumptive evidence of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, 502 
n.2 (BIA 2008). When, as here, expert opinions are not in accord with other information in the record, 
they are afforded less weight. Id. 
The inapposite assertions and evidence the Petitioner submitted in the proceedings up to now cannot 
constitute material, relevant, or probative evidence of the Petitioner's provision of a specialty 
occupation. Both the statutory and regulatory definitions of specialty occupation should be read in 
context to require attainment of a bachelor's degree or higher in a specific specialty. See Defensor v. 
Meissner, 201 F.3d 384 (5th Cir. 2000). A position is a "specialty occupation" under the statute and 
regulations if it involves a "body of highly specialized knowledge" attained after completing a 
bachelor's degree or higher in a "specific specialty." Sagarwala v. Cissna, 387 F.Supp.3d 56, 65 
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(D.D.C. 2019). The incongruities present in the record of proceedings before us cannot comprise a 
specialty because their fluid nature leads us to question what the true requirements are. The varied 
expressions of what fields of study the Petitioner would accept to comprise a body of specialized 
knowledge to perform the duties of the position introduce a doubt as to whether the Petitioner would 
accept a bachelor's degree in any generalized field of study to perform the duties of the position. And 
if we do not know what the specialty is, we cannot conclude that the educational requirements would 
provide an individual with the "body of highly specialized knowledge" required to perform the duties 
of a specialty occupation. So, this excludes the Petitioner's proffered position from consideration as 
a specialty occupation. The Petitioner's exercise of flexibility in its minimum educational 
requirements and preparation of supporting documentation does not convincingly demonstrate that 
their proffered job is a specialty occupation. 
In summary, we are unable to ascertain the proffered position's substantive nature due to the 
deficiencies outlined above. And since we cannot determine its substantive nature, we cannot 
conclude whether the position qualifies as a specialty occupation under any of the criteria enumerated 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). The Petitioner has therefore not overcome this ground of the 
Director's decision. 
III. CONCLUSION 
It is the Petitioner's burden to provide competent and credible evidence of the nature of its proffered 
specialty occupation and the Beneficiary's qualification for the proffered position. The Petitioner has 
not met their burden for the reasons set forth above. 
ORDER: The appeal is dismissed. 
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