dismissed H-1B Case: Nursing

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
FILE: EAC 02 205 50838 Office: VERMONT SERVICE CENTER Date: 1 4 2005 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 205 50838 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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, 
therefore, 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. 8 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a brief and previously submitted evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 8 214.2(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. 
5 214.2(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 
EAC 02 205 50838 
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director's denial letter; and (5) 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 in the medical intensive care unit. 
Evidence of the beneficiary's duties includes: the Form 1-129; the January 22, 2002 letter accompanying the 
Form 1-129; 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 who have had serious operations 
or serious medical problems, and who have also had complications caused by these problems; monitoring the 
newest equipment, utilizing modern technology, and having a depth and breadth of knowledge that would 
enable her to recognize even small symptoms of future complications. The letter stated that, except for 
attending meetings, classes, and performing preparatory work, the beneficiary would spend all of her time there. 
The petitioner stated that a candidate must possess a bachelor's degree or its equivalent 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 stated that employers 
generally do not require a bachelor's degree for a registered nurse position, and that the nursing industry 
distinguishes only registered nurses from advanced practice nurses. The director found that the petitioner failed 
to explain and document the qualitative difference between the curriculum of a baccalaureate and associate 
degree, and questioned whether the expert opinion letters represented the views of the avowed authors. The 
director gave little weight to the position statements of the American Association of Colleges of Nursing 
(AACN), the Department of Veterans Affairs (VA), and the expert opinion letters. The director delineated 
statistics about the percentage of registered nurses, hospital nurses, nurse supervisors, and head nurses 
holding associate degrees as documented by the U.S. Department of Health and Human Services, Bureau of 
Health Professions. According to the director, the submitted evidence did not establish that the petitioner 
normally requires a bachelor's degree for the position. The director rejected the petitioner's contention about 
experience equating to a bachelor's degree in nursing. 
On appeal, the petitioner states that the proffered position qualifies as a specialty occupation, and refers to the 
description of the proffered position, a November 27, 2002 memorandum, letters from alleged independent 
medical experts, a Journal of the American Medical Association (JAMA) study, information about degree 
programs in nursing, a press release, and evidence from the VA. 
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 petitioner's January 22, 2002 letter claimed that CIS has already determined that the proffered position is a 
specialty occupation since it has approved other, similar petitions in the past. To support this statement, the 
record contains over 30 approval notices. This record of proceeding does not, however, contain all of the 
supporting evidence submitted to the Vermont Service Center in the prior cases. In the absence of all of the 
corroborating evidence contained in the record of their proceedings, the documents submitted by the 
petitioner are not sufficient to enable the AAO to determine whether the petitions were parallel to the offered 
position. Furthermore, each nonimrnigrant petition is a separate proceeding with a separate record. See 8 
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C.F.R. 3 103.8(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). If the other nonimrnigrant petitions 
were approved based on identical facts that are contained in the current record, those approvals would be in 
violation of paragraph (h) of 8 C.F.R. 5 214.2, and would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comrn. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
The AAO next considers 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 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 petitioner claims that the November 27, 2002 memorandum (the nurse memo) stated that critical care 
nurses and other specialty care nurses qualify for H-1B classification. The petitioner therefore maintains that 
the proffered position qualifies as a specialty occupation: it is a critical care and specialty nursing position 
that entails working in the petitioner's medical intensive care unit. The petitioner emphasizes that the 
Handbook provides three major paths for an entry-level nursing position, and stresses that the proffered 
occupation is not an entry-level job. 
The assertions do not prevail in establishing that the proffered position qualifies as a specialty occupation. 
Indeed, the nurse memo 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 Nevertheless, the mere fact that a nursing position has a title such as "critical care" does not 
necessarily mean that it qualifies as a specialty occupation.2 
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. 
EAC 02 205 50838 
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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 closely resemble those performed by registered nurses who 
provide direct patient care by observing, assessing, and recording symptoms, reactions, and progress; assisting 
physicians during treatments and examinations; administering medications; and assisting in convalescence and 
rehabilitation. Hospital nurses, the Handbook states, are mostly staff nurses who provide bedside nursing care 
and carry out medical regimens. These nurses, the Handbook reports, are usually assigned to one area, such as 
surgery, maternity, or intensive care. As such, the proffered position's duty of working in the intensive care 
unit would be performed by a registered nurse as illustrated in the Handbook. 
The Handbook states the following about the training and educational requirements for registered nurse positions: 
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 continued: 
. . . [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, candidates for the offered position would not require a bachelor's degree for 
entry into the occupation. 
We find that the evidence contained in the record fails to show that the petitioner established that a 
baccalaureate degree in a specific specialty is the minimum for entry into the occupation. The record shows 
that the petitioner had asserted that the VA has determined that registered nurse positions are specialty 
occupations because only candidates holding bachelor's degrees can occupy the positions. This assertion is 
EAC 02 205 50838 
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weak. In the first place, the VA document entitled "Nurse Qualification Standard," revised the policy on the 
qualification standard for all persons appointed as registered nurses, but it does not establish that a 
baccalaureate or higher degree or its equivalent is the normal minimum for entry into the offered position. For 
instance, Appendix B of the document does not elaborate on whether the grade of nurse I (levels 1-3), which 
require either associate's or bachelor's degrees in nursing, are registered nurse positions assigned to a 
hospital's surgery, emergency care, maternity, or intensive care units. 
The December 18, 1998 press release reveals that the VA and the AACN simply seek to provide nurses with 
innovative academic opportunities to obtain baccalaureate or higher degrees in a convenient setting. On page 
2, the press release stated that only 31 percent of registered nurses hold bachelor's degrees, and 32 percent 
hold associate's degrees, plainly indicating that a bachelor's degree is not the minimum requirement for entry 
into the proffered position. Furthermore, the Handbook reveals that employers accept candidates with 
associate degrees in nursing. Thus, based on the evidence in the record, the petitioner fails to establish the 
first criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
The evidence in the record fails to establish the second criterion - that a degree requirement is common to the 
industry in parallel positions among similar organizations. The nurse memo and the VA documents are not 
probative in establishing the second criterion. Again, the mere fact that a nursing position has a title such as 
"critical care" does not necessarily mean that it qualifies as a specialty occupation. We have already set forth 
the deficiencies in the VA document and the December 18, 1998 press release. The JAMA article simply 
discussed the patient-to-nurse ratio in hospitals. Previous counsel's January 16,2003 letter stated: 
The present industry standard, for medical facilities employing registered nurses in these 
units, is baccalaureate degree in nursing preferred. 
The letter continued: 
Because of the great need, hospitals and other medical facilities cannot adopt a policy that 
requires a baccalaureate degree. However, they will take a baccalaureate nurse over an 
associate degree nurse for these positions. 
There is no evidence that supports the statement "they will take a baccalaureate nurse over an associate degree 
nurse." The quoted statements from the petitioner's previous counsel emphasize that a bachelor's degree is not 
an industry-wide requirement. The other evidence in the record - the VA document and the AACN and 
JAMA articles - fail to establish the second criterion: that the industry requires a bachelor's degree. 
The petitioner did not submit any evidence regarding parallel positions in the petitioner's industry, nor does 
the record include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) or (2). 
EAC 02 205 50838 
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The third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that it normally requires a 
degree or its equivalent for the position. The third criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A) requires that the 
petitioner establish that it normally requires a degree or its equivalent for the position. In response to the 
director's request for evidence, the petitioner submitted lists of the nurses at the petitioner's facility who have 
bachelor's degrees in nursing. There is no evidence regarding the total number of nurses at the petitioner's 
facility, or within the medical intensive care unit. This information, therefore, does not establish that the 
petitioner normally requires a degree for the position, only that some of the petitioner's employees have a 
degree. 
In addition, as the director has already stated, the petitioner's creation of a position with a perfunctory 
bachelor's degree requirement will not mask the fact that the position is not a specialty occupation. CIS must 
examine the ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. Cf. Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). The critical element is not the title of the 
position or an employer's self-imposed standards, but whether the position actually requires the theoretical 
and practical application of a body of highly specialized knowledge, and the attainment of a baccalaureate or 
higher degree in the specific specialty as the minimum for entry into the occupation as required by the ~ct.~ 
To interpret the regulations any other way would lead to absurd results: if CIS were limited to reviewing a 
petitioner's self-imposed employment requirements, then any alien with a bachelor's degree could be brought 
into the United States to perform a menial, non-professional, or an otherwise non-specialty occupation, so 
long as the employer required all such employees to have baccalaureate or high degrees. See id. at 388. 
The evidence in the record is not adequate 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. § 214.2(h)(4)(iii)(A)(4). The petitioner refers to the nurse memo to 
state that critical care nurse positions, such as the proffered position, require a bachelor's degree. Again, the 
title of a nursing position such as "critical care" does not necessarily mean that the position qualifies as a 
specialty occupation. Rather, the actual duties of the proffered position are controlling. 
The article from the JAMA and the information about degreed nursing programs is irrelevant in establishing 
that the proffered position requires a bachelor's degree in nursing. The article merely discussed improving 
the nurse to patient ratio. The IU Northwest School of Nursing Program's philosophy statement seems nearly 
identical for the associate of science and bachelor of science degrees. The associate of science program 
prepares its graduates "with the knowledge and skills to provide direct care to individuals within the family 
and community context." Graduates are a "competent provider of nursing care, a conscientious practitioner 
who practices within the legal and ethical parameters of nursing, and an accountable/responsible manager of 
care." Similarly, the bachelor of science graduate is "capable of practicing in a competing and responsible 
fashion as informed citizens in a dynamic and diverse society." According to the philosophy statement, the 
3 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
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Page 8 
baccalaureate nursing education merely provides a "broad foundation in the sciences and liberal arts 
necessary for preparing professional nurses who are capable of practicing in a competent and responsible 
fashion as informed citizens in a dynamic and diverse society." 
On appeal, the petitioner submits three letters from "independent medical experts;" however, they are 
insufficient in establishing that a bachelor's degree or its equivalent is required for the proffered registered 
nurse position. The attention of CIS is drawn to the remarkable similarity of these three letters submitted to 
show that a degree requirement is common to the industry. It is noted that the letters are essentially identical. 
As the letters appear to have been drafted by the same individual, CIS questions whether they represent the 
true testimony of the avowed authors. 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 (Cornm., 1988). 
We note that the petitioner claims that CIS is requiring that the petitioner establish all four criteria set forth at 
8 C.F.R. 5 214.2(h)(4)(iii)(A). This is not the case. The director's denial letter considered the evidence in 
the record and the duties of the proffered position to determine whether the petitioner satisfied any one of the 
four criteria. No language in the denial letter indicated that the director required that the petitioner establish 
all four criteria. Accordingly, the petitioner has failed to establish that the proffered position is a specialty 
occupation. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. 
Beyond the decision of the director, the petitioner has not established that the beneficiary is qualified to 
perform the duties of the proffered position. According to the Handbook, all States and the District of 
Columbia require that students graduate from an approved nursing program and pass a national licensing 
examination. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), states that an alien applying for classification as an H-1B 
nonirnrnigrant worker must possess full state licensure to practice in the occupation, if such licensure is 
required to practice in the occupation, and completion of the degree in the specialty that the occupation 
requires. 
Pursuant to 8 C.F.R. 3 214.2(h)(4)(v)(A), if an occupation requires a state or local license for an individual to 
fully perform the duties of the occupation, an alien seeking H classification in that occupation must have that 
license prior to the approval of the petition to be found qualified to enter the United States and immediately 
engage in employment in the occupation. 
No evidence in the record indicates that the beneficiary possesses a license to practice as a registered nurse or 
has passed a national licensing examination. The petitioner claims that the State of Pennsylvania does not 
offer the licensing examination outside of the United States and that the beneficiary will take the examination 
EAC 02 205 50838 
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soon after entering the United States. The petitioner attests that the U.S. consulate usually waives the 
requirement that the beneficiary possess a license to work immediately upon entry into the United States. 
The petitioner's claims are not convincing. A May 4, 1992 memorandum entitled "Temporary Licensure for 
H-1B Nonirnrnigrants" and issued by Lawrence J. Weinig, Acting Assistant Commissioner stated that the 
intent of the regulation at 8 C.F.R. 5 214.2(h)(4)(v)(A) is not to deny petitions where a license is required 
solely because the beneficiary did not possess the required physical presence in the United States necessary to 
obtain licensure. CIS will approve initial H-1B petitions where the alien is otherwise qualified but lack of 
physical presence in the United States is the sole bar to obtaining temporary licensure. However, the 
petitioner must submit an official statement from the licensing authority which clearly indicates that the alien 
is eligible for temporary licensure and that the license can be obtained immediately upon entering the United 
States and, if required, registering for the state's next licensing examination and paying the appropriate fee. 
The record does not contain an official statement from the licensing authority that indicates that the 
beneficiary is eligible for temporary licenswe and that the license can be obtained immediately upon entering 
the United States. Thus, the AAO finds that the beneficiary does not qualify to perform the duties of the 
proffered position. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER. The appeal is dismissed. The petition is denied.