dismissed H-1B Case: Nursing

U.S. Department of Homeland Security 
20 Mass, Rm. A3042,425 I Street, N.W. 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 13 1 54242 Office: CALIFORNIA SERVICE CENTER Date: ~JJ 1 4 2005 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101 (a)( lS)(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, Director 
Administrative Appeals Office 
WAC 04 13 1 54242 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant 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 an operating room nurse. The petitioner 
endeavors to classify the beneficiary as a nonirnrnigrant worker in a specialty occupation pursuant to section 
lOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 101(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Immigration and Nationality Act (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. $ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
3 214.2(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. 
WAC 04 13 1 54242 
Page 3 
The petitioner is seeking the beneficiary's services as an operating room nurse. Evidence of the beneficiary's 
duties includes: the Form 1-129; the March 29, 2004 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: providing nursing care in the operating room to meet identified patient outcomes and to achieve the 
goals of the facility, as directed by the director of nurseslcharge nurse; functioning as circulating nurse, scrub 
nurse and/or teacher; providing quality nursing care through the proper use of instruments, technique, 
equipment, supplies and cleaning methods; gathering supplies and equipment required for each surgical 
procedure performed; maintaining accurate operative records; solving problems which arise during the 
provision of primary care; assisting in the orientation of new employees; participating in ordering and 
stocking of supplies, instruments, and other items specific to outpatient surgery; 'cross-training' in all areas of 
the petitioner's work, in order to assist during breaks, lunches, personnel shortages, or heavy caseloads, as 
necessary; maintaining required logs for sterilization, implants, specimens, temperature and humidity, 
eyewash, refrigerators, warming closets, etc.; participating in room turnover in an effort to keep the operating 
room schedule running efficiently; communicating with the operating room charge nurse regarding any 
changes in patient condition and/or schedule; planning, managing and providing the high standard of nursing 
care associated with the petitioner's facility; nursing care of patients undergoing surgical and/or other 
invasive procedures; functioning as admitting nurse, obtaining patient history and relevant information; 
preparing patients for surgery; and assisting the operating teams, including preparing, monitoring and 
cleaning the operating room and equipment. The petitioner indicated that a qualified candidate for the job 
would possess a bachelor's 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. 5 214.2(h)(4)(iii)(A). The director noted that the duties of the 
position were routine to any nursing position and an individual does not need to hold a baccalaureate degree 
in nursing to fill a registered nurse position. 
On appeal, counsel states that the duties of the position are so specialized and complex that knowledge 
required to perform them is usually associated with attainment of a bachelor's degree. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(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. 5 214.2(h)(4)(iii)(A)(l) 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 fm or individuals in the industry attest that such fm 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 115 1, 1165 
(D. Minn. 1999) (quoting HirdZBlaker COT. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
WAC 04 13 1 54242 
Page 4 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. No evidence in the Handbook indicates that a baccalaureate or higher degree, or its 
equivalent, is required for a registered nursing job. 
The petitioner submitted no evidence regarding parallel positions in its industry or any evidence from 
professional associations regarding an industry standard. The record also does not include documentation to 
support the complexity or uniqueness of the proffered position. 
On November 27, 2002, CIS issued a policy memorandum on H-1B nurse petitions (nurse memo) and 
acknowledged that an increasing number of nursing specialties, such as critical care and operating room care, 
require a higher degree of knowledge and skill than a typical RN or staff nurse position.1 However, the mere 
fact that a nursing position has a title such as "operating room nurse" does not necessarily mean that it 
qualifies as a specialty occupation.2 
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. CIS must be satisfied that the ultimate 
employment of the alien is in a specialty occupation, regardless of the position's title. None of the duties 
listed in the position description appear to go beyond those normally associated with a registered nurse. The 
petitioner has, thus, not established the criteria set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. § 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. The AAO notes that although the petitioner's letter of support stated that a bachelor's degree in nursing 
was required for the proffered position, the position description submitted in response to the director's request for 
evidence stated that the educational requirements for the position were: "Graduate of an Accredited School of 
Nursing. Minimum of one year experience as OR Nurse." There is no requirement for a bachelor's degree in the 
position description. 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. 
1 Memorandum from Johnny N. Williams, Executive Associate Commissioner, INS Office of Field 
Operations, Guidance on Adjudication of H-1B Petitions Filed on Behalf of Nurses, HQISD 7016.2.8-P 
(November 27,2002). 
2 It is worth noting that the nurse memo also mentions that certification examinations are available to such 
registered nurses who may work in such nursing specialties and possess additional clinical experience, but 
who are not advanced practice nurses. 
WAC 04 131 54242 
Page 5 
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. 3 214.2(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. 
3 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.