dismissed H-1B Case: Music

PUBLIC COPY! 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 052 54555 Office: CALIFORNIA SERVICE CENTER Date: &PI 0 6 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 4 1 10 l(a)(l 5)(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The nonimmigrant visa petition was approved by the California Service Center on December 
12,2002. On August 16, 2004, a Notice of Intent to Revoke (NOIR) was served on the petitioner by mailing a 
copy of same to the petitioner's attorney. That notice set forth the grounds for revocation of the petitioner's Form 
1-129 petition, and informed the petitioner that it had 30 days in which to respond to the NOIR. The petitioner 
responded to the NOIR by correspondence dated September 8, 2004. On October 2 1,2004 the director revoked 
approval of the Form 1-129 petition. The matter is now before the Administrative Appeals Ofice (AAO) on 
appeal. The appeal will be dismissed. The revocation will be affirmed. 
The petitioner is a non-profit organization engaged in writing and producing Chinese Christian music. It 
seeks to employ the beneficiary as a musician (instrumental), and endeavors to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
After reviewing the record, the director found that the offered position did not qualify as a specialty 
occupation under section lOl(a)(lS)(H)(i)(b) of the Act, and that the position is within the nonimmigrant 
classification of an alien who has extraordinary ability or performs as an artist or entertainer, which are found 
within sections 10 l(a)(15)(O)(i) and 1 Ol(a)(l 5)(P)(ii)(I) of the Act, respectively. For this reason, the director 
revoked approval of the petition. 
The regulation at 8 U.S.C. 5 214.2(h)(11) concerning the revocation of approval of a petition is as follows: 
(1 1) Revocation of approval of petition--(i) General. (A) The petitioner shall immediately 
notify the Service of any changes in the terms and conditions of employment of a beneficiary 
which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this 
section. An amended petition on Form 1-129 should be filed when the petitioner continues to 
employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner 
shall send a letter explaining the change(s) to the director who approved the petition. 
(B) The director may revoke a petition at any time, even after the expiration of the petition. 
(ii) Automatic revocation. The approval of any petition is automatically revoked if the 
petitioner goes out of business or files a written withdrawal of the petition. 
(iii) Revocation on notice--(A) Grounds for revocation. The director shall send to the 
petitioner a notice of intent to revoke the petition in relevant part if he or she finds that: 
(I) The beneficiary is no longer employed by the petitioner in the capacity specified in the 
petition, or if the beneficiary is no longer receiving training as specified in the petition; or 
(2) The statement of facts contained in the petition was not true and correct; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
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(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) 
of this section; or 
(5) The approval of the petition violated pargraph (h) of this section or involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of 
the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The 
petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The 
director shall consider all relevant evidence presented in deciding whether to revoke the 
petition in whole or in part. If the petition is revoked in part, the remainder of the petition 
shall remain approved and a revised approval notice shall be sent to the petitioner with the 
revocation notice. 
The director stated in his notice of intent to revoke and in the revocation that the position of a performing 
violinist does not meet the requirements of a specialty occupation. The AAO agrees and finds that the 
revocation was appropriate in that the petition's approval did not meet the requirements of 
8 C.F.R. § 214.2(h). 
Section 2 14(i)(l) of 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. 
Pursuant to 8 C.F.R. 3 2 14.2(h)(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. 
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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 which is in a 
specific specialty that is directly related to the proffered position. 
The petitioner seeks to employ the beneficiary as a musician (instrumental). In this capacity, under the 
direction and supervision of the music producer, the beneficiary would: 
Apply knowledge in music fundamentals and instrumental performance to play the violin as a soloist, 
accompanist, or member of an ensemble in concerts and workshops; 
Read and study music and the composer's intended style and message for the music; 
Rehearse music with the conductor, singer(s), andlor other instrumental musicians in order to learn 
and interpret music in an effective and appropriate manner so as to achieve the desired purpose, and 
cany the specific message(s) across to listeners and create an impact on them; 
At the conductor's instruction, transpose music to play it in different keys and occasionally improvise 
music at live performances; 
Work closely with the producer to create the musical background (with the violin) for the pre-existing 
melody of music so as to set off the original melody by the background in an effective manner. 
Pursuant to 8 C.F.R. § 214.2(h)(1 l)(B)(iii)(S), the director may revoke an H-1B petition if approval of the 
petition violated paragraph (h) of 8 C.F.R. § 214.2, or involved gross error. In this instance, the AAO finds 
that approval of the petition was in violation of paragraph (h) of the cited regulation in that the proffered 
position does not qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A). The following 
discussion elaborates on the AAO's conclusion. 
To qualify as a specialty occupation at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(I) or (2), the petitioner must establish 
that 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 2006-2007 
edition of the Department of Labor's Occupational Outlook Handbook (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 aflidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Znc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
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. 
On appeal, counsel refers to the Handbook, the Dictionary of Occupational Titles (DOT), the Occupational 
Information Network (the O*Net), and the Occupational Employment Statistics (OES) wage survey to show 
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that the offered position qualifies as a specialty occupation. The DOT, the O*Net, and the OES wage survey 
are not persuasive sources of information regarding whether a particular job requires the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the 
occupation. An SVP rating is meant to indicate only the total number of years of vocational preparation 
required for a particular position. It does not specify the particular type of degree, if any, that a position 
would require. For this reason, the director did not err in discounting the information from the DOT, the 
O*Net, and the OES wage survey. 
The Handbook, however, is a resource that the AAO routinely refers to in order to determine the duties of 
particular occupations and the education, training, and experience normally required to enter into and advance 
within occupations. The Handbook discloses that the beneficiary's duties are within the occupational 
classification entitled "musicians, singers, and related workers." The Handbook states the following about 
this classification: 
Musicians, singers, and related workers play musical instruments, sing, compose or arrange 
music, or conduct groups in instrumental or vocal performances. They may perform solo or 
as part of a group. Musicians, singers, and related workers entertain live audiences in 
nightclubs, concert halls, and theaters featuring opera, musical theater, or dance. Many of 
these entertainers play for live audiences; others perform exclusively for recording or 
production studios. Regardless of the setting, musicians, singers, and related workers spend 
considerable time practicing, alone and with their bands, orchestras, or other musical 
ensembles. 
Musicians often gain their reputation or professional standing by exhibiting a high level of 
professionalism and proficiency in a particular kind of music or performance. However, those 
who learn several related instruments and who can perform equally well in several musical 
styles have better employment opportunities. Instrumental musicians, for example, may play 
in a symphony orchestra, rock group, or jazz combo one night, appear in another ensemble 
the next, and work in a studio band the following day. Some play a variety of string, brass, 
woodwind, or percussion instruments or electronic synthesizers. 
Arrangers transcribe and adapt musical compositions to a particular style for orchestras, 
bands, choral groups, or individuals. Components of music-including tempo, volume, and 
the mix of instruments needed-are arranged to express the composer's message. While some 
arrangers write directly into a musical composition, others use computer software to make 
changes. 
All of the beneficiary's duties, such as playing the violin, interpreting and transposing music, and working 
with the producer to create a musical background, fall within the Handbook's classification of musicians and 
arrangers. 
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According to the Handbook, employers do not require a baccalaureate degree in a specific academic field for 
musicians, singers, and related workers. It reports: 
Musicians need extensive and prolonged training to acquire the necessary skills, knowledge, 
and ability to interpret music at a professional level. 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 more than 600 college-level programs in music. Courses typically include music 
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. 
Many colleges, universities, and music conservatories grant bachelor's or higher degrees in 
music. A master's or doctoral degree usually is required to teach advanced music courses in 
colleges and universities; a bachelor's degree may be suficient 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 and recreation associations or instruct individual 
students in private sessions. 
The excerpt from the Handbook reveals that a baccalaureate degree is not required for a position such as a 
musician and arranger within the occupational classification "musicians, singers, and related workers." Thus, 
the AAO disagrees with counsel's assertion that the Handbook supports the petitioner's assertion that the 
offered position qualifies as a specialty occupation. Consequently, the petitioner fails to establish the 
criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I): a baccalaureate or higher degree or its equivalent in a specific 
specialty is the normal minimum requirement for entry into the particular position. 
No evidence establishes that a specific degree requirement is common to the industry in parallel positions 
among organizations that are similar to the petitioner; or alternately, shows that the proposed position is so 
complex or unique that it can be performed only by an individual with a degree, which is the criterion at 
8 C.F.R. 214.2(h)(4)(iii)(A)(2). Again, the proposed duties are performed by musicians and arrangers, 
occupations that the Handbook reveals do not require a baccalaureate degree in a specific specialty. 
No evidence establishes that the petitioner normally requires a degree or its equivalent for the position, the 
criterion at 8 C.F.R. 3 2 14.2(h)(4)(iii)(A)(3). 
The criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4) requires the petitioner to establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to such 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 musicians and arrangers, which are occupations that do not require a 
bachelor's degree in a specific specialty. As such, the petitioner fails to establish this last criterion. 
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The proffered position does not meet any of the requirements of 8 C.F.R. $ 214.2(h)(4)(iii)(A), and the 
petitioner has failed to overcome the grounds of the director's revocation. The director's decision shall, 
therefore, not be disturbed. 
Although the petitioner suggests that their rights to procedural due process were violated, they have not 
shown that any violation of the regulations resulted in "substantial prejudice" to them. See De Zavala v. 
Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an alien "must make an initial showing of 
substantial prejudice" to prevail on a due process challenge). The respondents have fallen far short of meeting 
this standard. A review of the record and the adverse decision indicates that the director properly applied the 
statute and regulations to the petitioner's case. The petitioner's primary complaint is that the director denied 
the petition. As previously discussed, the petitioner has not met its burden of proof and the denial was the 
proper result under the regulation. Accordingly, the petitioner's claim is without merit. 
The director stated that the offered position is encompassed within the nonimmigrant classification of an alien 
who has extraordinary ability or performs as an artist or entertainer, which are defined within sections 
10 1 (a)( 15)(0)(i) and 10 1 (a)( 1 5)(P)(ii)(I) of the Act, respectively. Categorization of the offered position in 
those classifications is not before the AAO in this proceeding. 
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 revoked.