dismissed H-1B Case: Music

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
PUBLICCOpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
OCT 3 12007
FILE: WAC 0620050720 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 1 01(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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
www.uscis.gov
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WAC 06 200 50720
Page 2
DISCUSSION: The service center 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.
The petitioner is a music studio. Itseeks to employ the beneficiary as a piano instructor/teacher, and endeavors to
classify her as a nonimmigrant worker in a specialty occupation pursuant to section 101(aX15XH)(iXb) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1l01(aX15XH)(iXb).
The director denied the petition because the beneficiary did not qualify to perform the duties of a specialty
occupation. On appeal, the petitioner submits a brief stating that the beneficiary qualifies to perform the duties of
a specialty occupation.
The director's determination denying the 1-129 petition was based solely on the beneficiary's qualifications to
perform the duties associated with that occupation. The only issue to be discussed in this proceeding is
whether the beneficiary is qualified to perform the duties of a specialty occupation.
Section 101(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 1101 (a)(l5)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform
services in a specialty occupation.
Section 214(i)(2) of the Act, 8 u.s.c.§ 11 84(i)(2), states that an alien applying for classification as an H-IB
nonimmigrant worker must possess:
(A) full state licensure to practice in the occupation, if such licensure is required to
practice in the occupation,
(B) completion of the degree described in paragraph (l)(B) for the occupation, or
(C) (i) experience in the specialty equivalent to the completion of such degree, and
(ii) recognition of expertise in the specialty through progressively responsible
positions relating to the specialty.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, the alien
must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation
from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or
higher degree required by the specialty occupation from an accredited college or
university;
(3) Hold an unrestricted State license, registration or certification which authorizes him or
her to fully practice the specialty occupation and be immediately engaged in that
specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience that is
equivalent to completion of a United States baccalaureate or higher degree in the
WAC 06 200 50720
Page 3
specialty occupation, and have recognition of expertise in the specialty through
progressivelyresponsiblepositionsdirectly related to the specialty.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D), for purposes of paragraph (h)(4)(iii)(C)(4) of this section,
equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a
level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal
to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by
one or more of the following:
(1) An evaluation from an official who has authority to grant college-level credit for
training and/or experience in the specialty at an accredited college or university which
has a program for granting such credit based on an individual's training and/or work
experience;
(2) The results of recognized college-level equivalency examinations or special credit
programs, such as the College Level Examination Program (CLEP), or Program on
Noncollegiate Sponsored Instruction (PONSI);
(3) An evaluation of education by a reliable credentials evaluation service which specializes
in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized professional
association or society for the specialty that is known to grant certification or
registration to persons in the occupational specialty who have achieved a certain level
of competence in the specialty;
(5) A determination by the Service that the equivalent of the degree required by the
specialty occupation has been acquired through a combination of education, specialized
training, and/or work experience in areas related to the specialty and that the alien has
achieved recognition of expertise in the specialty occupation as a result of such training
and experience.
As previously noted, the sole basis for the director's decision was that the record did not establish that the
beneficiary is qualified to perform the duties of a specialty occupation. According to the record, the
beneficiary was awarded a licentiate teachers diploma in pianoforte from the Trinity College of Music in
London, England. The petitioner attempts to establish that the beneficiary's foreign education is equivalent to
a baccalaureate level education in the United States, which could qualify her to perform the duties of a
specialty occupation pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C)(2). In support thereof, the petitioner submitted
an opinion letter from Immediate Past President of the Georgia Music Teacher's
Association. _ states that she is a teacher of piano and music theory at Reinhardt College and that
she is the recipient of a lifetime National College Faculty Certification from the Music Teachers National
Association. is of the opinion that the beneficiary's Licentiate Teacher's Diploma and
Performer's Certificate through the Trinity College of Music in London, England meet the United States
standards for being a professional music instructor._ further states that the beneficiary's Licentiate
Diploma "is on par with a Bachelor' s De~ qualifying her for a specialty occupation designation."
The record does not establish, however,_qualifications to evaluate foreign degrees to determine
if they are equivalent to degrees awarded by accredited colleges or universities in the United States. Under
8 C.F.R. § 214.2(h)(4)(iii)(D)(3), an individual's foreign education may be evaluated for equivalence
purposes, by a reliable credentials evaluation service that specializes in evaluating foreign educational
WAC 06 200 50720
Page 4
credentials. The record does not establish this requirement with regard to_or that the opinion
writer is otherwise qualified to evaluate foreign educational credentials. Her opinion, therefore, is of little
evidentiary value. CIS 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,
CIS is not required to accept, or may give less weight, to that evidence . Matter of Caron International ,
19 I&N Dec. 791 (Comm. 1988). The evidence of record does not establish that the beneficiary holds a
foreign degree that is equivalent to a baccalaureate level education from an accredited college or university in
the United States. The beneficiary may not, therefore, be deemed qualified under the present record to
perform the duties of a specialty occupation.
Citizenship and Immigration Services (CIS) may itself determine whether the beneficiary is qualified to
perform the duties of the specialty occupation. That determination may be made pursuant to 8 C.F .R.
§ 214.2(h)(4)(iii)(D)(5) , which provides:
For purposes of determining equivalency to a baccalaureate degree in the specialty, three
years of specialized training and/or work experience must be demonstrated for each year of
college-level training the alien lacks. For equivalence to an advanced (or Masters) degree,
the alien must have a baccalaureate degree followed by at least five years of experience in the
specialty .... It must be clearly demonstrated that the alien's training and/or work experience
included the theoretical and practical application of specialized knowledge required by the
specialty occupation ; that the alien's experience was gained while working with peers,
supervisors, or subordinates who have a degree or its equivalent in the specialty occupation ;
and that the alien has recognition of expertise in the specialty evidenced by at least one type
of documentation such as:
(i) Recognition of expertise in the specialty occupation by at least two recognized
authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association or society in the
specialty occupation;
(iii) Published material by or about the alien in professional publications, trade
journals, books or major newspapers;
(iv) Licensure or registration to practice the specialty occupation in a foreign country;
or
(v) Achievements which a recognized authority has determined to be significant
contributions to the field of the specialty occupation.
The documentation recounting the beneficiary's work experience is insufficient in detail to determine that: the
work experience included the theoretical and practical application of specialized knowledge required by the
proffered position; the beneficiary's experience was gained while working with peers, supervisors, or
subordinates who have a degree or its equivalent in the specialty occupation; and that the beneficiary has
recognition of expertise in the specialty. CIS cannot, therefore, determine that the beneficiary is qualified to
perform the duties of the specialty occupation.
WAt 06 200 50720
Page 5
Beyond the decision of the director, the record does not establish that the proffered position qualifies as a
specialty occupation. As described in The Department of Labor's Occupational Outlook Handbook
(Handbook), the duties of the offered position are essentially those provided by "musicians, singers, and
related workers." The Handbook notes that a master's or doctoral degree is usually required to teach
advanced music courses in colleges and universities, but that a bachelor's degree may be sufficient to teach
basic courses. A degree in music education qualifies graduates for a State certificate to teach music in public
elementary or secondary schools. Musicians who do not meet public school music education requirements
may teach in private schools, conservatories, recreation associations or instruct students in private sessions.
Thus, it is apparent that a minimum of a bachelor's degree is not the norm for private music instruction. The
petitioner has not established that a baccalaureate or higher degree or its equivalent is normally the minimum
requirement for entry into the proffered position. 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). Further, the record does
not establish any of the remaining qualifying criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). For this additional
reason, the petition may not be approved.
The burdenof proof in theseproceedingsrests solely with thepetitioner. Section 291of the Act, 8 U.S.c. § 1361.
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed.
ORDER: The appeal isdismissed. The petition is denied.