dismissed H-1B Case: Nursing

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rrn. 3000 
Washington, DC 20529 
identifvhg data deletea lo 
prevent dearly unw~ted 
Bmsba dbensnrl ~riy11~b 
PUBLIC COPY 
U.S. Citizenship 
and Immigration 
FILE: LIN 04 800 41250 Office: NEBRASKA SERVICE CENTER Date: JUN 1 6 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l 5)(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 
LIN 04 800 41250 
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 nursing registry that seeks to extend the employment of the beneficiary as a registered 
nurse. The petitioner, therefore, endeavors to classify the beneficiary 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. 
§ 1 101 (a>( 15)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional 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. Cj 214.2(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. 
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 denial letter; and (3) 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 registered nurse. Evidence of the beneficiary's duties 
includes: the Form 1-129; and the job definition accompanying the Form 1-129. According to this evidence, 
the beneficiary would perform duties that entail, in part, performing as a primary care giver, diagnosing and 
LIN 04 800 4 1250 
Page 3 
treating common diseases attributed to the aging process; planning and conducting work requiring judgment, 
independent evaluation, selection, modification and application of procedures and techniques; developing 
andlor modifying nursing care standards and policies; using advanced skills and diversified knowledge to 
solve complex problems; writing reports to comply with governmental health regulations and for management 
feedback; performing assessment of vital conditions during admission process and identifying health and 
mental problems; diagnosis of ulcers due to any cause through body examination; performing evaluation and 
checking of medication transcriptions prescribed by monitoring dosages; maintaining documentation of 
patientlresident prognosis; performing detection and recognition of indications of depression; reviewing and 
signing patientlresident medical records as they are updated for use by nursing home management and/or 
required government inspection; reviewing and signing nursing care plans submitted by subordinate nursing 
staff; serving as a resources person; ensuring compliance with cost containment measures; assuming 
responsibility to staff the shift; conducting staff meetings; and assuming direct patient care responsibilities on 
occasion or when necessity dictates. The petitioner stated that the position requires a baccalaureate or 
equivalent degree in nursing. 
The director found that the proffered position was not a specialty occupation because the petitioner failed to 
establish any of the criteria found at 8 C.F.R. !j 214.2(h)(4)(iii)(A). The director noted that the petitioner 
entered into the record a memorandum issued on November 27,2002, by Executive Associate Commissioner, 
Johnny Williams, of the legacy INS (Nursing ~emo.)' The director noted that when the petitioner submitted 
its first petition for the beneficiary seeking classification as a specialty occupation in June 2003, the state of 
North Dakota required a individual to have a bachelor's degree in nursing to be licensed as a registered nurse 
(RN) in that state. The director noted that in August 2003, North Dakota amended its Nursing Practice Act to 
change the standards for obtaining a license as an RN to less than four years of academic study. Therefore, 
the director found that in accordance with the statute and regulations previously cited, the occupation of staff 
nurse (with no evidence of responsibility for advanced practice beyond the duties normally performed by an 
RN) does not qualify as a specialty occupation. Furthermore, the director noted that there is no regulatory 
provision for extending the nonimmigrant classification of an alien worker who is no longer entitled to such 
classification. As such, the director determined that the proffered position was not a specialty occupation. 
On appeal, the petitioner explains that it was not "aware that such drastic changes took place involving the 
practice of RN [sic] in North Dakota." The petitioner asserts that the proffered position is a specialty 
occupation and submits additional information on appeal. The petitioner submits a job description for the 
position of Nurse Supervisor/Nephrologist. Additionally, the petitioner submits several job advertisements 
for positions in the field of nursing. 
The AAO notes that on appeal the petitioner has changed the proffered position title from registered nurse to 
nurse supervisor/nephrologist, and has also changed the job description and duties. On appeal, a petitioner 
cannot offer a new position to the beneficiary, or materially change a position's title, its level of authority 
within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that 
the position offered to the beneficiary when the petition was filed merits classification as a specialty 
occupation. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
1 
Memorandum from Johnny N. Williams, Executive Associate Commissioner, INS Office of Field 
Operations, Guidance on Adjudication of H-IB Petitions Filed on Behalf of Nurses, HQISD 7016.2.8-P 
(November 27,2002). 
LIN 04 800 41250 
Page 4 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
 Therefore, the AAO will review the 
description of the proffered position that was submitted in its initial petition. 
The AAO notes that this petition is an extension of a previously approved position. Each nonimmigrant 
petition is a separate proceeding with a separate record. See 8 C.F.R. 8 103.8(d). In making a determination 
of statutory eligibility, CIS is limited to the information contained in the record of proceeding. See 8 C.F.R. 5 
103.2(b)(16)(ii). 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $8 214.2(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 115 1, 1165 
(D.Min. 1999)(quoting Hird/Blaker Corp. v. Suva, 71 2 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
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. While the nurse memo specifically states that 
a petitioner may be able to demonstrate, through affidavits from independent experts or other means, that the 
nature of the position's duties is so specialized and complex that the knowledge required to perform the duties 
is usually associated with the attainment of a bachelor's or higher degree (or its equivalent), CIS maintains 
discretion to use as advisory opinions statements submitted as expert testimony. Matter of Caron 
International, 19 I&N Dec. 791 (Comm. 1988). CIS must be satisfied that the ultimate employment of the 
alien is in a specialty occupation, regardless of the position's title. 
CIS often looks to the Handbook when determining whether a baccalaureate or higher degree or its equivalent is 
normally the minimum requirement for entry into a particular position. After a careful review of the Handbook, 
the AAO finds that the beneficiary's proposed duties, such as performing assessment of vital conditions during 
admission process and identifying health and mental problems; performing diagnosis of ulcers due to any 
cause through body examination; performing evaluation and checking of medication transcriptions prescribed 
by monitoring dosages; maintaining documentation of patiendresident prognosis closely resemble those 
performed by registered nurses who perform basic duties that include treating patients, educating patients and 
the public about various medical conditions, and providing advice and emotional support to patients' family 
members. RNs record patients' medical histories and symptoms, help to perform diagnostic tests and analyze 
results, operate medical machinery, administer treatment and medications, and help with patient follow-up 
and rehabilitation performed by a registered nurse as illustrated in the Handbook. The supervisory duties of 
the proffered position such as reviewing and signing nursing plans or staffing the designated shift do not 
elevate the position to that of a fully administrative position. 
The Handbook states the following about the training and educational requirements for registered nurse positions: 
LIN 04 800 41250 
Page 5 
There are three major educational paths to registered nursing: associate degree in nursing 
(A.D.N.), bachelor of science degree in nursing (B.S.N.), and diploma. . . . Generally, 
licensed graduates of any of the three program types qualify for entry-level positions as staff 
nurses. 
The Handbook continues: 
[Slome career paths are open only to nurses with bachelor's or advanced degrees. 
 A 
bachelor's degree is often necessary for administrative positions, and it is a prerequisite for 
admission to graduate nursing programs in research, consulting, teaching, or a clinical 
specialization. 
Thus, according to the Handbook, requirements for the offered position would not include a bachelor's degree for 
entry into the occupation. The Handbook reveals that employers accept candidates with associate degrees in 
nursing. Thus, based on the evidence in the record, the petitioner fails to satisfy the first criterion at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). 
The evidence in the record fails to satisfy the first alternative prong of the second criterion - that a degree 
requirement is common to the industry in parallel positions among similar organizations. 8 C.F.R. 
214.2(h)(4)(iii)(A)(2). 
 The petitioner submits several classified job advertisements from the Nursing 
Spectrum for a variety of positions in the nursing field. The majority of the advertisements are for positions 
that appear to have duties that are different from the proffered position. Some of the advertised positions are 
entitled: (1) advanced practice nurse: adult psychiatry, enterostomal therapy, neurosurgery; (2) nurse 
practitioner/cardiology; (3) clinical specialist, critical care and cardiac services; (4) clinical nurse specialist: 
ambulatory care (chemotherapy), post anesthesia care unit (PACU); and (5) utilization review/discharge 
planner. The petitioner has not established that the positions advertised are parallel to the proffered position 
or that the organizations are similar to the petitioner. Furthermore, it appears that the petitioner selected 
certain advertisements and did not submit the entire classified page of the publication. Thus, the job postings 
do not establish that a bachelor's degree is common to the industry in parallel positions among similar 
organizations. 
The petitioner has not satisfied the second alternative prong of the second criterion. No evidence is in the 
record that would show the proffered position is so complex or unique that it can be performed only by an 
individual with a degree. Again, the Handbook reveals that the duties of the proffered position are performed 
by a registered nurse, a position that does not require a bachelor's degree in a specific specialty. 
The third criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(3) requires that the petitioner establish that it normally 
requires a degree or its equivalent for the position. The petitioner did not submit evidence to satisfy this criterion 
or address it in its initial petition or on appeal. 
The evidence in the record is inadequate to 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. 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). The petitioner has not provided evidence to 
distinguish the duties of the proffered position from those duties typically performed by a registered nurse as 
described in the Handbook. Accordingly, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 
LIN 04 800 41 250 
Page 6 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.