dismissed H-1B Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 22, 2025 In Re: 34713500 
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)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB 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)(l5)(H)(i)(b) of the Act. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
The Act at Section 214(i)(l), 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" 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) is a minimum for entry into the occupation in the United States. 
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) 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 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. 
The statute and the regulations must be read together to make sure that 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 statue 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 leads to scenarios where a Petitioner satisfies a regulatory factor but not the definition of 
specialty occupation contained in the statute. See Defensor v. Meissner, 201 F.3d 384, 387 5th Cir. 
2000). 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, but one in a specific specialty that is directly related to the proffered position 
supporting the statutory definition of specialty occupation. 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"). USCIS' application of this 
standard has resulted in the orderly approval ofH-lB petitions for engineers, accountants, information 
technology professionals and other occupations, commensurate with what Congress intended when it 
created the H-1 B category. 
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 the 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 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, a research and medical institution, seeks to employ the Beneficiary in H-lB 
classification to serve as a registered nurse in the department of adult psychiatry and submitted a labor 
condition application (LCA) certified for a position located within the registered nurse occupational 
category as contained in the Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook). See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
Registered Nurses (Apr. 17, 2024), https://www.bls.gov/ooh/healthcare/registered-nurses.htm. 
According to the Petitioner, the proffered job requires a minimum of a bachelor's degree or foreign 
equivalent degree in nursing. 
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For the reasons below, we have determined that the Petitioner's registered nurse position does not 
qualify as a specialty occupation. The evidence the Petitioner has submitted into the record does not 
sufficiently demonstrate that performance of the proffered job's duties requires an individual with a 
bachelor's degree in a specific related specialty, or the equivalent. 
A. First Criterion 
The Petitioner's proffered job does not qualify as a specialty occupation under the first criterion of the 
regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). To satisfy this criterion, the position must require a 
bachelor or higher degree in a specific specialty as a threshold for entry. In support, the Petitioner 
submitted a copy of the Handbook's entry for "Registered Nurses." 
The Petitioner contends the Handbook specifically states the 'typical entry-level education for 
Registered Nurses' is a bachelor's degree. The Handbook lists "three pathways to becoming a 
registered nurse." Only one requires attaining a bachelor's degree in nursing or a nursing specialty. 
The other pathways facilitate entry to a nursing occupation with less than an educational level 
equivalent to a bachelor's degree in nursing, such as an associate' s degree in nursing or even a diploma 
from an approved nursing program. And the Handbook's statement that hospitals may elect to institute 
a bachelor's degree in nursing for nursing positions describes a potential preference of some employers 
versus a normal requirement for a certain type of employer like hospitals. So, the Handbook's entry 
for registered nurses in not sufficiently material, relevant, or probative to convincingly demonstrate a 
bachelor or higher degree in a specific specialty as a threshold for entry to the Petitioner's proffered 
position. 
The Petitioner has not provided sufficient documentation from a probative and authoritative source to 
conclude that a baccalaureate or higher degree or its equivalent in a specific specialty related to the 
duties of the job are normally required as a minimum qualification for entry to this particular position. 
So, the Petitioner has not satisfied the first criterion contained at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
B. First Prong of Second Criteria 
The 
Petitioner's proffered job does not qualify as a specialty occupation under the first alternate prong 
of the second criterion. The second criterion presents two, alternative prongs: (A) the degree 
requirement is common to the industry in parallel positions among similar organizations; or (B) the 
employer's particular position is so complex or unique that it can be performed only by an individual 
with a degree. The first prong, concerned with common industry practice is satisfied when the 
Petitioner establishes that their degree requirement is common to the industry in parallel positions 
among similar organizations. 
On appeal, the Petitioner contends the job postings it provided demonstrated a bachelor's degree in 
nursing or its equivalent is a common requirement in its industry in parallel positions. The Director 
concluded that the record did not contain adequate material, relevant, and probative evidence 
showcasing how the positions described in the job postings were parallel to its proffered position or 
how the organizations posting the position vacancies are similar organizations. On appeal, the 
Petitioner contends that it provided sufficient evidence that the organizations are comparable. 
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To be relevant for consideration under this prong, the job vacancy announcements must advertise 
"parallel positions," and the announcements must have been placed by organizations that (1) conduct 
business in the Petitioner's industry and (2) are also "similar" to the Petitioner. Although the Petitioner 
provided a brief description for each organization, it did not sufficiently explain how each organization 
is similar to the Petitioner. Some postings were for organizations that appear to be smaller than the 
Petitioner such as Catholic Guardian Services with 1200 employees and Gracie Square Hospital with 
120 beds, and one organization was much larger such as JP Morgan Chase Health and Wellness 
Centers with 250,000 employees. In addition, the job vacancy announcements are for positions that 
appear to differ from the proffered position. For example, some of the job titles were for a unit 
manager registered nurse, a staff registered nurse, a clinical review nurse, and a registered nurse -
senior level III. It appears that several of the positions are for management nurse positions and 
positions that may be of a higher level than the proffered position. It is not readily apparent from the 
record through material, relevant, and probative evidence if these advertised positions are parallel to 
the duties of the position proffered by the Petitioner. The Director's decision noted these concerns but 
on appeal the Petitioner reiterates the same prior claims and does not provide additional evidence about 
the organizations or job duties in the vacancy announcements to overcome the Director's concerns. 
So, we conclude that the advertisements provided do not support the Petitioner's argument concerning 
eligibility under the first alternative prong of the second criteria 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Second Prong of Second Criterion and Fourth Criterion 
The Petitioner's proffered job does not qualify as a specialty occupation under the second alternate 
prong of the second criterion or the fourth criterion of the regulations at 8 C.F.R. 
§§ 214.2(h)(4)(iii)(A)(2) and (A)(4). The alternative prong of the second criterion 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 a bachelor's degree in a specific specialty related to the duties of the proffered 
position or its equivalent. The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) requires a petitioner 
to establish that the nature of the specific job 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. 
The Petitioner stated that its registered nurses must possess a bachelor's degree in nursing or a foreign 
equivalent as a minimum qualification for entry because the Petitioner is a "prominent academic 
medial center hospital engaging in the highest levels of medical research and delivering the highest 
levels of cutting edge medical care." The Petitioner further stated that the American Nurses 
Credentialing Center (ANCC) recognized the Petitioner as a magnet institution that is committed to 
hiring registered nurses with a bachelor's degree in nursing. Whilst magnet recognition may 
demonstrate that there is a concerted effort to increase the population of nurses with bachelor's degrees 
in nursing, the magnet recognition does not demonstrate whether the nursing positions at the magnet 
recognized institutions are more "complex or unique" or their duties "specialized and complex" simply 
by virtue of the ANCC magnet recognition. 
The record lacks sufficient unambiguous evidence that is material, relevant, and probative describing 
how the Petitioner's registered nurse position is more "complex or unique" or its duties "specialized 
and complex" from positions that do not require at least a bachelor's degree in a specific specialty or 
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its equivalent to perform the duties of the Petitioner's offered job. So, the Petitioner has not satisfied 
the second alternative prong of the second criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or the fourth 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
D. Third Criterion 
The Petitioner's proffered job does not qualify as a specialty occupation under the third specialty­
occupation criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). The third criterion requires an employer to 
demonstrate that it normally requires a bachelor's degree in a specific specialty, or its equivalent, 
related to the performance of the position's job duties. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self­
imposed requirements, an organization could bring any individual with a bachelor's degree to the 
United States to perform any occupation so long as the petitioning entity created a token degree 
requirement. Id. 
The Petitioner provided a letter from its Director of Nursing Recruitment that stated as a top-tier 
national research and medical institution that provides the highest standard of care, it "normally" hires 
nurses with a bachelor's degree as a basic educational qualification for the registered nurse position. 
The author also noted that the Petitioner maintains a magnet designation that requires it to reach at 
least 80 percent of bachelor level nurses. The author did not state that the Petitioner normally requires 
a bachelor's degree in a specific specialty. 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"). However, even if the Petitioner demonstrates that the 
educational requirement for the registered nurses is a bachelor's degree in a specific specialty such as 
nursing, the submitted documentation explaining the eligibility for ANCC magnet designation does 
not clearly show the Petitioner normally hires registered nurses with a bachelor's degree. The ANCC 
manual indicated that part of the eligibility for ANCC magnet designation, the organization must 
"provide graphed data ( displayed as a percentage) of baseline data, plus two years of data, 
demonstrating the organization progressing toward ( or maintaining) >80% of professional registered 
nurses who have earned a baccalaureate or higher degree in nursing." Since the ANCC guidelines 
allow for evidence of the institution "progressing toward" at least 80 percent of registered nurses who 
have a bachelor's degree in nursing, it is not clear if the Petitioner normally hires nurses with a 
bachelor's degree in nursing or if it hires nurses without a bachelor's degree and allow them to earn a 
bachelor's degree in nursing after being hired. 
The Petitioner also provided evidence showing that 91 percent of the registered nurses currently 
working in the adult psychiatry unit, the unit where the proffered position will be located, possessed a 
bachelor's degree in nursing or its equivalent when hired. The Petitioner provided the educational 
documentation of the ten registered nurses currently working in this unit. The Petitioner also explained 
that two of the registered nurses in the adult psychiatry unit were hired with less than a bachelor's 
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degree in nursing because one nurse was hired over twenty year ago "before the educational 
requirements evolved" and another nurse had an associate's degree with 43 years of experience. We 
observe that the Petitioner indicated it employs approximately 4000 registered nurses, consequently, 
it cannot be determined how representative the Petitioner's claim regarding the ten individuals 
currently employed as registered nurses in the adult psychiatry unit over decades of time is of the 
Petitioner's normal recruiting and hiring practices. The Petitioner has not satisfied the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
The Petitioner has not persuasively established that it normally requires at least a bachelor's degree in 
a specific specialty required to perform the duties, or its equivalent, for the position. So, the Petitioner 
has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
And the Petitioner has not satisfied any of the available criteria described at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l)-( 4). Thus, it has not established that the proffered position is a specialty 
occupation. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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