dismissed H-1B Case: Music

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
FILE: SRC 04 246 5 1 102 Office: TEXAS SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 10 l(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
/A .akim<f$$%? 
Administrative Appea s Office 
SRC 04 246 51102 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a church that seeks to employ the beneficiary as a minister of music. The petitioner, 
therefore, endeavors to classify the beneficiary as a nonirnmigrant worker in a specialty occupation pursuant to 
section 10 l(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1 10 1 (a)(l S)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a statement and refers to previously submitted evidence. 
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. 
Pursuant to 8 C.F.R. 5 214.20(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be performed only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties is so specialized and complex that knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
$ 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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
SRC 04 246 51102 
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director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a minister of music. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: directing musical programs under the immediate supervision of 
the church's pastor; instructing adults and children in proper vocal techniques and music performance; 
conducting church choirs and other musical ensembles in the presentation of religious music for all seasons; 
performing moderately complex duties to audition and select choir members and other musicians; selecting 
and adapting music to suite the liturgcal season and requirements of religious services, with the advice and 
consent of the pastor; assisting the pastor in deciding on musical works for purchase; transcribing musical 
compositions and melodic lines to adapt them or create a particular style required by the pastor; and playing 
the organ or piano during services and instructing adults and children in church organ and piano performance. 
The petitioner stated that a qualified candidate for the job would possess a bachelor's degree in music or 
theology. 
The director determined that the proffered position was not a specialty occupation. According to the director, 
the Department of Labor's POL) Occupational Outlook Handbook (the Handbook) reveals that the duties of 
the proffered position are performed by music directors, which is an occupation that does not require a 
baccalaureate degree in a specific specialty. The director stated that the proposed duties and stated level of 
responsibility do not indicate complexity or authority that is beyond what is normally encountered in the 
occupational field, and that the evidence of record is not persuasive in showing that the job offered could not 
be performed by an experienced person whose educational training falls short of a baccalaureate degree. 
On appeal, counsel states that the proffered position is a specialty occupation. Counsel contends that all 
ministers of the Presbyterian Church, and all professionals at the petitioner's church have degrees in religion, 
theology or a closely related area. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
9 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. $9 214.2(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 firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Slattevy, 764 F. Supp. 872, 1102 (S.D.N.Y. 1991)). 
SRC 04 246 51 102 
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In determining whether a 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 refers to the Handbook for the duties of particular 
occupations and the education, training, and experience normally required to enter into and advance within 
the occupations. 
Counsel asserts that the Handbook reveals that the proposed position is a specialty occupation. This is not 
persuasive. The Handbook discloses that the proposed position's duties are encompassed within the 
occupational classification entitled "musicians, singers, and related workers." Music directors conduct, 
direct, plan, and lead instrumental or vocal performances by musical groups, such as orchestras, choirs, and 
glee clubs. They audition and select musicians and singers and lead choirs and glee clubs. Musicians play 
instruments such as the flute and clarinet. Arrangers transcribe and adapt musical compositions to a particular 
style for choral groups, individuals, orchestras, or bands. These are the duties that the beneficiary will 
perform. 
According to the Handbook, employers normally do not require a baccalaureate degree for these occupations. 
The Handbook indicates: 
Musicians need extensive and prolonged training to acquire the necessary slulls, knowledge, 
and ability to interpret music. . . . Formal training may be obtained through private study with 
an accomplished musician, in a college or university music program, or in a music 
conservatory. . . . The National Association of Schools of Music accredits nearly 600 college- 
level programs in music. Courses typically include musical theory, music interpretation, 
composition, conducting, and performance in a particular instrument or in voice. Music 
directors, composers, conductors, and arrangers need considerable related work experience or 
advanced training in these subjects. 
Based on the above excerpt from the Handbook, a baccalaureate or higher degree or its equivalent in a 
specific specialty is not the normal minimum requirement for entry into the particular position, music 
director. 
In response to the director's request for evidence, the petitioner shifted its focus 
director to the position as a minister. The evidence presented regarding 
requirements for its ministers is not persuasive. While the petitioner calls the 
Music, there is no evidence that the duties of the position are those typically required of ministers within the 
In addition, there is no evidence that the beneficiary would be ordained as a minister. 
To determine whether the petitioner can establish that its position meets the second criterion - that a specific 
degree requirement is common to the industry in parallel positions among similar organizations or that the 
proffered position is so complex or unique that it can be performed only by an individual with a degree in the 
SRC 04 246 51102 
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specific specialty - the AAO finds that no evidence has been submitted to satis6 the second criterion at 
8 C.F.R. fj 214.2(h)(4)(iii)(A). As interpreted by CIS, the second criterion requires a petitioner to establish 
that a degree in a specific specialty directly related to the proffered position is common to its industry. As 
indicated above, the Handbook does not establish that a degree in a specific field is required to perform the 
duties of a music director. Thus, the Handbook does not provide evidence of a specific degree as an industry 
norm. The petitioner provided no evidence to establish that the proffered position is so complex or unique 
that it can be performed only by an individual with a bachelor's degree in the specific specialty. The 
petitioner has not met the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(2). 
The third criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A) requires that the petitioner establish that it normally 
requires a degree or its equivalent for the position. Here, the petitioner states that it normally requires a 
baccalaureate degree for all of its professional positions. The petitioner provides no evidence to support this 
statement. The petitioner's creation of a position with a perfunctory bachelor's degree requirement will not 
mask the fact that the position is not a specialty occupation. CIS must examine the ultimate employment of 
the alien, and determine whether the position qualifies as a specialty occupation. Cf: Defensor v. Meissner, 
201 F. 3d 384 (5" Cir. 2000). The critical element is not the title of the position or 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 ~ct.' To interpret the regulations any other 
way would lead to absurd results: if CIS were limited to reviewing a petitioner's self-imposed requirements, 
then any alien with a bachelor's degree could be brought into the United States to perform a menial, 
non-professional, or an otherwise non-specialty occupation, so long as the employer required all such 
employees to have baccalaureate or higher degrees. See id. at 388. As already discussed, the duties of the 
proffered position are performed by music directors, musicians, and arrangers, which the Handbook reveals 
are occupations that do not require a baccalaureate degree. The AAO notes that no evidence supports the 
petitioner's claim that it normally requires a bachelor's degree for the proposed position. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofzci, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The fourth criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A) requires that the petitioner 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. Based on the Handbook's information, the 
duties of the proposed position are performed by music conductors, musicians, and arrangers, which are 
occupations that do not require a bachelor's degree. 
1 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
SRC 04 246 5 1102 
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As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. t$ 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.