dismissed H-1B Case: Nursing

identifying dsta deleted 6 
prevent clearly unwarranted 
invasion of mnai privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
pmc COPY 
FILE: EAC 02 191 54326 Office: VERMONT SERVICE CENTER Date: BAR 2 7 
IN RE: Petitioner: 
Beneficiary: 
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 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 materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
BJ~z* 
# Robert P. Wiemann, 'rec 
" 
Administrative Appeals 6&ce 
EAC 02 191 54326 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
as expelled from practice before U.S. Citizenship and Immigration Services pursuant to the 
~.F.R. 5 292.3(a)(l)(i). Accordingly, the petitioner is self-represented in this matter. 
The petitioner is a hospital in the 
 It seeks to employ the beneficiary 
as a registered nurse and to cla 
 a specialty occupation pursuant to 
section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1101 
(a>( 15)(H>(i>(b). 
The director denied the petition on the grounds that the record failed to establish (a) that the proffered 
position is a specialty occupation or (b) that the beneficiary is licensed to practice nursing in Pennsylvania 
and thereby qualified to perform services in a specialty occupation. 
Section 214(i)(l) of 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. 
As provided in 8 C.F.R. 3 214.2(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. 
EAC 02 19 1 54326 
Page 3 
Section 214(i)(2) of the Act, 8 U.S.C. 3 1184(i)(2)(A) provides that an alien must have "full state 
licensure to practice in the occupation, if such licensure is required to practice in the occupation" in order 
to be qualified to perform the services of a specialty occupation. The licensure requirement is further 
explained in the regulation at 8 C.F.R. 3 214.2(h)(4)(v)(A), in pertinent part, as follows: 
A. General. 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 approval of the petition to be found eligible to enter the United 
States and immediately engage in employment in the occupation. 
B. Temporary licensure. If a temporary license is available and the alien is allowed to perform 
the duties of the occupation without a permanent license, the director shall examine the nature 
of the duties, the level at which the duties are performed, and the degree of supervision 
received, and any limitations placed on the alien. If an analysis of the facts demonstrates that 
the alien under supervision is authorized to fully perform the duties of the occupation, H 
classification may be granted. 
C. Duties without licensure. In certain occupations which generally require licensure, a state 
may allow an individual to fully practice the occupation under the supervision of licensed 
senior or supervisory personnel in that occupation. In such cases, the director shall examine 
the nature of the duties and the level at which they are performed. If the facts demonstrate 
that the alien under supervision could fully perform the duties of the occupation, H 
classification may be granted. 
The record of proceeding before the AAO contains (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's decision; 
and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its 
entirety before issuing its decision. 
The petitioner describes itself as a hospital, established in 1885, with 3,936 employees and gross annual 
income of $1.23 billion. It proposes to hire the beneficiary as a registered nurse (R.N.) in its Medical 
Intensive Care Unit (MICU), where she would care for patients recovering from surgery, or who have 
post-surgical complications involving neurosurgery, trauma, and the like. In response to the RFE, in 
which the director requested a detailed description of the beneficiary's duties and the number of hours 
required by each duty per week, the petitioner provided the following statement: 
The beneficiary . . . will . . . spend virtually all of [her] time in medical intensive care 
units [MICU] . . . [with] the following responsibilities: caring for patients who have had 
serious operations or serious medical problems, and who have also had complications 
caused by these problems . . . . This work involves monitoring the newest of equipment, 
utilizing modem technology, and having a depth of knowledge as well as breadth of 
knowledge that would enable the nurse to recognize even small symptoms of future 
complication . . . 
EAC 02 191 54326 
Page 4 
[Ulnlike a general ward, where the immediate failure to recognize slight changes of 
condition could result in minor problems in a patient, the patient in the MICU is in 
immediate peril of paralysis or death if even small changes in condition are not 
recognized and understood. 
[Llife in the MICU, for the registered nurse, is observing, on almost a minute-to-minute 
basis, a series of crises for anywhere from five to fifteen patients in the unit, and handling 
those crises in an appropriate and life-saving manner. 
[Tlhe complexity of the heart, when considered in combination with the risk factors that 
could cause death or other catastrophic non-fatal impairments, requires that medical 
personnel tending it have the specialized depth of knowledge and experience to properly 
carry out their duties. 
The minimum educational requirement for the proffered position, according to the petitioner, is a 
bachelor of science degree in nursing (B.S.N.). The record shows that the beneficiary received a B.S.N. 
from Angeles University, in the Philippines, on April 6, 2000, and that she was employed as a staff nurse, 
or medical-surgical nurse, by a hospital in the Philippines from May 2000 through May 2001. 
The service center determined that the proffered position is not a specialty occupation. In the director's 
judgment, the nature of the position is not so specialized, complex, or unique that only an individual with 
a degree can perform the job, that a baccalaureate or higher degree is usually associated with the duties of 
the position, or that the proffered position is particularly specialized, complex, or unique within the 
nursing industry. No evidence was submitted that the nursing industry distinguishes "non-specialized" 
from "specialized" registered nurses, the director indicated, and the Department of Labor's Occupational 
Outlook Handbook (Handbook) makes no such distinction. Rather, the Handbook distinguishes more 
broadly between "registered nurses" and "advanced practice nurses," indicating that the latter must meet 
educational and clinical practice requirements beyond those of registered nurses. In the director's view, 
the petitioner failed to show why a licensed nurse who graduated from an associate or diploma program, 
rather than a four-year baccalaureate program, would be incapable of performing the duties of a registered 
nurse working in an intensive care unit. The director found that the record failed to show a B.S.N. degree 
is common to the nursing industry in parallel positions among similar organizations. The duties of the 
proffered position parallel those carried out by registered nurses working in hospitals, the director 
declared, positions for which the licensing authority in Pennsylvania does not require B.S.N. degrees. 
The Handbook does recognize that a B.S.N. is often necessary for administrative positions, the director 
pointed out, but the record in this case did not demonstrate that the duties of the proffered position fit the 
Handbook's description of a nurse administrator or advanced practice nurse, which would require a 
bachelor's degree. Position statements and opinion letters in the record from medical organizations and 
professionals were not persuasive evidence that a B.S.N. is the minimum educational requirement for the 
proffered position, the director stated. Finally, the director noted the lack of evidence that the beneficiary 
is a licensed registered nurse in Pennsylvania and immediately eligible to practice nursing in the state. 
Accordingly, the record failed to establish that the beneficiary is qualified to perform the services of a 
registered nurse. 
On appeal counsel asserts that the proffered position is that of a critical care nurse, a type of nursing 
specialty that may require a higher degree of knowledge than a typical R.N. or staff nurse position, as 
EAC 02 19 1 54326 
Page 5 
discussed in a memorandum of the legacy Immigration and Naturalization Service (INS) which provides 
guidance on the adjudication of H-1B petitions for registered nurses (H-1B Memorandum). ' According 
to the H-IB Memorandum, a critical care nurse may require a B.S.N. degree, depending on the duties of 
the particular position, which would make it a specialty occupation. The duties of the critical care nursing 
position at issue in this petition are more specialized and complex than those of a typical registered nurse, 
counsel contends, and can only be performed by a nurse with the comprehensive educational background 
of a B.S.N. degree, thus making it a specialty occupation. As for the licensure issue, counsel 
acknowledges that the beneficiary does not have a nursing license or a temporary permit to practice 
nursing from the Commonwealth of Pennsylvania, and cannot take the state's licensing examination until 
she enters the United States. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook, supra, as an authoritative source of information about the 
duties and educational requirements of particular occupations. Factors typically considered are whether 
the Handbook indicates a degree is required by the industry; 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. Sava, 712 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and 
complexity of the position at issue, with the Handbook's occupational descriptions as a reference, as well 
as the petitioner's past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
The occupation of registered nursing is described in the Handbook, 2006-07 edition, in pertinent part, as 
follows: 
Registered nurses (RNs), regardless of specialty or work setting, 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. 
. . . . 
RNs can specialize in one or more patient care specialties . . . . RNs may combine 
specialties from more than one area - for example, pediatric oncology or cardiac 
emergency - depending on personal interest and employer needs. 
RNs may specialize by work setting or by type of care provided . . . . Critical care nurses 
work in critical care or intensive care hospital units and provide care to patients with 
cardiovascular, respiratory, or pulmonary failure . . . . 
Most RNs work as staff nurses, providing critical health care services along with 
physicians, surgeons, and other health care practitioners . . . . 
I 
 Memorandum of Johnny N. Williams, Executive Associate Commissioner, INS Office of Field Operations, 
Guidance on Adjudication of H-IB Petitions Filed on Behalfof Nurses, HQISD 7016.2.8-P (November 27,2002). 
EAC 02 19 1 54326 
Page 6 
As for the educational requirements of registered nurses, the Handbook indicates that there are three 
alternative paths. They include a four-year B.S.N. degree from a college or university, a two- or three- 
year associate degree in nursing (A.D.N.) from a community or junior college, and the less frequent three- 
year diploma program at a hospital. See id. Thus, the Handbook makes clear that a baccalaureate degree 
in a specific specialty is not the normal minimum requirement for entry into a registered nursing position 
at a hospital, or in a hospital's critical care unit. Less than a baccalaureate level education may suffice for 
many such positions. The Handbook also notes, however, that certain administrative positions, as well as 
advanced practice nurses (including clinical nurse specialists, nurse anesthetists, nurse midwives, and 
nurse practitioners), have educational requirements, such as a B.S.N. or a master's degree, which are 
beyond those generally applicable to registered nurses. See id. All 50 states and the District of Columbia 
require nurses to pass a national licensing examination, known as the NCLEX-RN. See id. 
The H-IB Memorandum from the legacy INS in November 2002, referenced by counsel in the briefs, 
provides additional guidance for CIS on the adjudication of H-1B petitions for registered nurses. In 
surveying the educational requirements for the nursing occupation, the H-IB Memorandum notes that the 
minimum requirement for entry into the field as a registered nurse is a two-year associate degree in 
nursing (A.D.N.). Though a four-year B.S.N. can be earned at some U.S. and foreign universities, the 
degree is not required for most entry-level nursing positions in the United States. The H-1B 
Memorandum indicates that certain advanced practice nurses - such as clinical nurse specialists, nurse 
practitioners, certified registered nurse anesthetists, or certified nurse-midwives - do require a B.S.N. or 
higher degree. Likewise, some nursing specialties - such as critical care, pen-operative, rehabilitation 
nursing, oncology, and pediatric nursing - may require a B.S.N. or equivalent knowledge. In addition, 
some nurses in high-level management positions - "such as an upper-level 'nurse manager' in a hospital 
administration," according to the H-IB Memorandum - require a B.S.N. or higher degree, making them 
specialty occupations. 
In detennining the nature of a particular position, and whether it qualifies as a specialty occupation, the 
duties that will actually be performed are dispositive, not the title of the position. The petitioner must 
show that the duties of the position normally require a degree in a specialty. The critical issue is not the 
employer's self-imposed standard, 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 a minimum for entry into the occupation. CJ: Defensor v. Meissner, 
201 F.3d 384, 387-88 (5th Cir. 2000). 
Though counsel asserts that the position at issue in this petition is a critical care "nursing specialty" 
within the contemplation of the H-1B Memorandum, requiring a B.S.N. degree, the duties described by 
the petitioner provide no details about the specific tasks the beneficiary would be performing that 
distinguish the position from a typical R.N. The petitioner identifies duties such as "caring for patients 
who have had serious operations or . . . medical problems . . . monitoring the newest of equipment, 
utilizing modern technology . . . observing on almost a minute-to-minute basis . . . five to fifteen patients 
. . . and handling th[eir] crises." These broad and general duties accord with the information in the DOL 
Handbook about the tasks of registered nurses generally, including hospital nurses who are assigned to 
the facility's intensive care unit. They do not describe a position that requires specialized knowledge that 
can only be attained with a B.S.N. degree. 
EAC 02 191 54326 
Page 7 
Counsel resubmits on appeal three letters from health professionals in Pennsylvania, initially submitted in 
response to the RFE, declaring that registered nurses filling critical care positions at the petitioner's 
facility and other hospitals require B.S.N. degrees. The letters discuss the petitioner's general need for 
more nurses in its emergency care units, but they do not discuss the particular position at issue in this 
petition or any of its specific duties. The letters do not explain that the duties of the proffered position 
could not be performed by an R.N. with less than a baccalaureate level of education, such as an A.D.N. 
Furthermore, all three letters, following some introductory information about each of the signatories, are 
virtually identical in their format and wording. Thus, it appears that the letters were not drafted by the 
individual authors, which lessens their evidentiary weight. CIS may, in its discretion, use as advisory 
opinions statements from universities, professional organizations, or other sources submitted in evidence 
as expert testimony. When an opinion is not accord with other information or is in any way questionable, 
however, CIS is not required to accept or may give less weight to that evidence. See Matter of Caron 
International, Inc., 19 I&N Dec. 791, 795 (Cornrn. 1988). The AAO determines that the opinion letters 
are not persuasive evidence that a B.S.N. or its equivalent is the normal minimum requirement for entry 
into the proffered position. 
For the reasons discussed above, the proffered position does not meet the first alternative criterion of a 
specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I). 
Seeking to establish that the proffered position meets the second alternative criterion of a specialty 
occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), counsel refers on appeal to a previously submitted 
announcement of the American Association of Colleges of Nursing (AACN), published in 1998, that it 
had entered into a partnership with the Veterans Administration (VA) to develop expanded opportunities 
for VA nurses to obtain B.S.N. and advanced degrees in nursing, with the goal of bringing all VA 
registered nurses to the B.S.N. level by 2005. The announcement says nothing about the educational 
requirements for registered nurses in the private sector, however, and the VA, as the director stated in his 
decision, does not represent the hospital industry as a whole and does not set the standards for the 
industry. Thus, the record does not establish that a B.S.N. degree is common to the petitioner's industry 
in parallel positions among similar organizations, as required for the proffered position to qualify as a 
specialty occupation under the first prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). Nor has the petitioner 
demonstrated that its nursing position is so complex or unique that it can only be performed by an 
individual with a B.S.N. degree, as required for the proffered position to qualify as a specialty occupation 
under the second prong of 8 C.F.R. 5 214.2 (h)(4)(iii)(A)(2). 
With regard to the third alternative criterion of a specialty occupation, at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3), 
the record indicates that the proffered position is newly created. The petitioner has submitted no 
documentation showing that it has previously required a B.S.N. degree or its equivalent for the position. 
Accordingly, the record does not establish that the petitioner normally requires a B.S.N. or its equivalent 
for the registered nurse position, as required for it to qualify as a specialty occupation under 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(A)(3). 
Lastly, the proffered position does not meet the fourth alternative criterion of a specialty occupation, at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(4), because the record does not establish that the duties of the subject 
position are so specialized and complex that baccalaureate level knowledge in a specific specialty is 
required to perform them. The record does not show that the duties of the proffered position could not be 
performed by an individual with less than a baccalaureate level knowledge of nursing. 
EAC 02 191 54326 
Page 8 
Counsel asserts that the Vermont Service Center has approved numerous H-1B petitions for similar 
positions and duties. Counsel has not submitted any of the documentary materials from those cases, 
however, demonstrating that the positions are similar to the one proffered by the petitioner in this case. 
Mere assertions by counsel will not satisfy the petitioner's burden of proof. See Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Moreover, the AAO is never bound by a decision issued by a service center or a district director. See 
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). Only published precedent decisions are binding on all CIS 
employees in the administration of the Act. See 8 C.F.R. 5 103.3(c). Each nonimrnigrant petition is a 
separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). Thus, any previously approved 
petitions in other cases have no legal bearing on the AAO's adjudication of the instant petition. 
For the reasons discussed above, the record does not establish that the proffered position meets any of the 
criteria set forth in 8 C.F.R. 3 214.2(h)(4)(iii)(A) to qualify as a specialty occupation. The petitioner has 
not established that the beneficiary will be coming temporarily to the United States to perform services in 
a specialty occupation, as required under section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 1101 
(a)( 15)(H)(i)(b). 
With respect to the beneficiary's qualifications to perform the services of a specialty occupation, counsel 
acknowledges that the beneficiary has neither full nor temporary licensure from the Commonwealth of 
Pennsylvania to practice nursing. Nor is there any evidence that the beneficiary is allowed by 
Pennsylvania to practice nursing under the supervision of a licensed senior or supervisory nurse. The 
AAO determines, therefore, that the beneficiary has not complied with the requirements for licensure set 
forth in section 214(i)(2)(A) of the Act, 8 U.S.C. 5 1184(i)(2)(A), and the regulations at 8 C.F.R. 3 214.2 
(h)(4)(v)(A)(A), (B), and (C), supra. 
Under 8 C.F.R. 5 103.2(b)(12) a petitioner must establish that it was eligible for a requested benefit at the 
time the petition was filed. See also 8 C.F.R. 5 214.2(h)(4)(iv)(A), which provides that "[aln H-1B 
petition involving a specialty occupation shall be accompanied by . . . required evidence sufficient to 
establish that the beneficiary is qualified to perform services in a specialty." [Emphasis added.] A visa 
petition may not be approved at a later date based on a set of facts not present at the time of filing. See 
Matter of Michelin Tire Corporation, 17 I&N Dec. 248, 249 (Reg. Cornrn. 1978). Since the beneficiary 
was not licensed to practice nursing at the time the H-1B petition was filed on May 8, 2002, she was not 
qualified to perform the services of a specialty occupation. Accordingly, the beneficiary is ineligible for 
H-1B classification pursuant to the instant petition. 
Thus, the record fails to establish that the proffered position is a specialty occupation or that the 
beneficiary is qualified to perform the services of a specialty occupation. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: 
 The appeal is dismissed. The petition is denied.