dismissed H-1B Case: Nursing

fdadt*drtr&?eted& 
pnvent clearly unwarranted 
invasion of pasonal privacy 
PCTBLIC COPY 
U.S. Department of Homeland Security 
20 Mass., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 02 213 52365 Office: VERMONT SERVICE CENTER Date: APfi 0 3 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(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. 
Ydministrative Appeals Office 
EAC 02 213 52365 
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 hospital that seeks to employ the beneficiary as a registered nurse. 
 The petitioner 
endeavors to classify the beneficiary as a nonimrnigrant worker in a specialty occupation pursuant to section 
10 1 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 101(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 brief and additional documentation.' 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 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. 9 214.2(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 request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
1 
 Counsel of record was expelled from practice in immigration proceedings on August 1 1,2005. All 
representations will be considered; however, counsel will not receive notice of these proceedings. 
EAC 02 213 52365 
Page 3 
The petitioner is seeking the beneficiary's services as a registered nurse in the critical care unit. Evidence of 
the beneficiary's duties includes: the Form 1-129; the March 11, 2002 letter of support; and the petitioner's 
response to the director's request for evidence. According to this evidence, the beneficiary would perform 
duties that entail, in part: caring for patients in very serious condition; caring for patients who have undergone 
any type of medical or surgical procedures including surgery for trauma, burn, pediatrics, neonatal, general 
medicine, cardiology and cardiac surgery patients; specializing in patients who have had major medical 
problems from disease or accident, including all types of neurosurgery, trauma, thoracic, vascular, major 
gastrointestinal and other complicated surgery, or who are complicated post surgical patients. The petitioner 
stated that the position required a nurse with at least a baccalaureate degree. 
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. 5 214.2(h)(4)(iii)(A). The director noted that the duties of the 
position were routine to any nursing position and, according to the Department of Labor's Occupational 
Outlook Handbook (Handbook), an individual does not need to hold a baccalaureate degree in nursing to fill a 
registered nurse position. The director found that the petitioner did not provide evidence that a fully licensed 
nurse who graduated from an associate or diploma program could not perform the duties of a registered nurse 
working in a critical care unit. 
On appeal, counsel states that the director ignored evidence. 
 Counsel asserts that the Memorandum 
concerning H-IB Petitions and Nurses from the Executive Associate Commissioner Williams, dated 
November 27, 2002 (Nursing Memo) evidences that critical care nurses can qualify for the H-IB visa. 
Counsel contends that the director "has totally ignored the memorandum and stated exactly the preconceived 
ideas about nurses that were prevalent before the Williams Memorandum was promulgated." Counsel 
contends that the proffered position is not an entry-level position. Counsel asserts that the petitioner requires 
registered nurses to fill the specialty position. Counsel submits two statements from independent medical 
experts stating: 
Registered nurses assigned in the following areas of the hospital are filling positions in 
specialty occupations: critical care units (including step-down units, intensive care units, 
(ICUs and CCUs), telemetry units, surgical and medical ICUs, medical/surgical units, cardiac 
care, recovery room, etc. These positions require the registered nurse to use the theoretical 
and practical application of highly specialized knowledge attained in a baccalaureate nursing 
program, or the equivalent. 
Counsel explains that though the statements from the medical experts contain exactly the same wording using 
a form provided by the petitioner, this should not detract from the value of the statements. Counsel also notes 
that the Department of Veteran's Affairs requires its registered nurses to have at least a baccalaureate degree 
and that this supports counsel's assertion that the proffered position is a specialty occupation. 
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 turns first to the criteria at 8 C.F.R. fj 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 
EAC 02 213 52365 
Page 4 
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 1151, 1165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. As the director noted, no evidence in the Handbook indicates that a baccalaureate or 
higher degree, or its equivalent, is required for a registered nursing job. 
The petitioner did not submit any evidence regarding parallel positions in the petitioner's industry. The 
petitioner submitted two identically worded expert opinion letters indicating that nursing in intensive care 
units is a specialty occupation. The petitioner submitted one letter from a private practice medical doctor, and 
another letter from a private practice doctor of osteopathy and a lawyer. The letters state: 
Due to the increased complexity of medical care, caused in part by advances in medical 
technique, medicine and medical technology, registered nurses require far more education 
than previously in certain areas of the hospital. Registered nurses, in these areas of the 
hospital require qualified nurses who possess, at the very minimum, a Bachelor of Science in 
Nursing (BSN) degree, with transcript, or the equivalent. 
Registered nurses filling positions in the following areas of the hospital are filling positions in 
specialty occupations . . . . 
These areas include registered nurses for all critical care units, including step-down units, 
intensive care units (ICUs), critical care units (CCUs), telemetry units, surgical and medical 
ICUs, medical-surgical units, cardiac care, recovery room and the like. 
The AAO notes that the letters submitted to establish that a degree requirement is common to the industry are 
essentially identical. As the letters appear to have been drafted by the same individual, CIS must question 
whether they represent the true testimony of the avowed authors. Counsel contends that though the letters are 
identical, the form should not detract from the signatories' opinion on the issue. CIS may, in its discretion, 
accept letters and advisory opinion statements 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. 79 1 (Comm. 1988). 
Counsel contends that the Nursing Memo proves that critical care nurses qualify for the H-1B visa, and that 
the proffered position falls under this category. The Nursing Memo states that certain specialized nursing 
occupations are likely to require a bachelor's or higher degree, and accordingly would be H-1B equivalent. 
Additionally, the Nursing Memo goes on to explain that positions that likely require nurses who are certified 
advance practice nurses will generally be H-1B equivalent due to the advanced level of education and training 
required for certification. The Nursing Memo describes certain advance practice occupations that will 
EAC 02 213 52365 
Page 5 
generally be H-1B equivalent if the position requires and the alien has obtained, advanced practice 
certification in the following areas, specifically: 
Clinical Nurse Specialist (CNS): Acute Care, Adult, Critical Care, Gerontological, Family, 
Hospice and Palliative Care, Neonatal, Pediatric, Psychiatric and Mental Health-Adult, 
Psychiatric and Mental Health-Child, and Women's Health. 
The petitioner has not stated that it requires advanced practice certification for the proffered position in the 
neonatal unit or that the beneficiary has obtained this certification. Therefore, the Nursing Memo does not 
support counsel's contention that the proffered position qualifies as a specialty occupation. 
Counsel stated that in the Intensive Care Unit, unless there is a response immediately made, and rapid life 
saving decisions made, the patient can suffer a possible substantial worsening of condition, even to death. 
Neither counsel nor the petitioner has described the duties of the position in sufficient detail to demonstrate 
that this position requires a baccalaureate degree. The petitioner has not demonstrated how an experienced, 
licensed nurse without a degree would be unable to perform the duties of the proffered position. The 
petitioner has not sufficiently distinguished the duties of a nurse in the intensive care unit from those of an 
associate degreed nurse. 
Counsel states that the Department of Veteran's Affairs requires its nurses to have a baccalaureate degree. 
The evidence of record does not establish that the Department of Veteran's Affairs practices are reflective of 
an industry standard. 
The petitioner has, thus, not established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. The record does not contain any evidence of the petitioner's past hiring 
practices and therefore, the petitioner has not met its burden of proof in this regard. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(iii)(A)(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. 
Counsel contends that "tried and true methods of filling critical care and specialty unit positions no longer 
works, which was by giving the positions to baccalaureate nurses, when available, or training associate degree 
nurses for many years before the nurse could take a responsible position." Counsel contends that the depth of 
knowledge gained by baccalaureate nurses can be best demonstrated by looking at the curricula of several 
colleges. Counsel highlights several courses dealing with older adults and states that he was not able to find 
more than one course dealing with older adults in various associate degree programs. Counsel concludes that 
this is "typical of the in-depth education that is available in a baccalaureate program." Counsel contends that 
"[nlone of this is available in the associate [program]. All of this is particularly applicable to the present 
position being offered." While an intensive care unit nurse may possess greater skills and experience than an 
entry-level nurse, the petitioner has not proved that those skills and experience can only be acquired by 
earning a bachelor's degree. Counsel asserts repeatedly that the duties of the proffered position are too 
complex to be performed by an entry-level nurse, but that does not establish that the duties could not be 
performed by an experienced nurse with less than a bachelor's degree. The assertions of counsel do not 
EAC 02 213 52365 
Page 6 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). To the extent that they are depicted in the record, the duties do not appear 
so specialized and complex as to require the highly specialized knowledge associated with a baccalaureate or 
higher degree, or its equivalent, in a specific specialty. Therefore, the evidence does not establish that the 
proffered position is a specialty occupation under 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4). 
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. 
$ 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.