dismissed H-1B Case: Nursing

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 007 50769 Office: CALIFORNIA SERVICE CENTER Date: OCT 2 6 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 lOl(a)(lS)(H)(i)(b) 
. * 
ON BEHALF OF PETITIONER: 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 007 50769 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a convalescent hospital. It seeks to employ the beneficiary as a critical care nurse and to 
classify her 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. 3 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the grounds that the proffered position is not a specialty occupation 
and the beneficiary is not qualified to perform services in a specialty occupation, as she lacks the requisite 
nursing license from the State of California. 
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. 
As provided in 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. 
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. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 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. 4 214.2(h)(4)(v)(A), in pertinent part, as follows: 
WAC 04 007 50769 
Page 3 
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 notice of decision; 
and (5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before issuing its 
decision. 
The petitioner describes itself as a convalescent hospital, established in 1999, with 60 employees and a 
gross annual income of approximately $3 million. It proposes to hire the beneficiary as a critical care 
nurse. The duties of the position, and the estimated percentage of time each duty will take, are listed by 
the petitioner as follows: 
25 % Act in the convalescent or home care setting where patients require complex 
assessment, high intensity therapies and interventions, and continuous nursing 
vigilance. 
20% Act as clinician. She is responsible for the identification, intervention and 
management of clinical problems to improve care for patients and families. 
20% Provide direct patient care, including assessing, diagnosing, planning and 
prescribing phannacologic and non-pharmacologic treatment of health problems. 
18% Take care of health history and risk appraisal, interpretation of diagnostic tests 
and providing treatment, which may include prescribing medication. 
10% Perform the other regular duties of nurses in acute care in a hospital setting, 
unless the performance of such duties will require possession of a state license. 
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7% Report regularly to the nursing administrator, doctors, and administrators on the 
progress of her work and on the critical care problems of patients. 
The minimum educational requirement for the proffered position, the petitioner stated, is a bachelor's 
degree in nursing (B.S.N.). The record shows that the beneficiary received a B.S.N. from Perpetual Help 
College of Laguna, in the Philippines, on March 30, 1992. The record also includes photocopies of the 
petitioner's quarterly wage withholding report for the first quarter of 2003, the petitioner's operating 
license from the State of California, and a listing of other healthcare centers in the petitioner's corporate 
group, all located in California. 
In his decision the director determined that the proffered position is not a specialty occupation. The 
director found that the duties of the proffered position are those of a registered nurse, as described in the 
Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook), and cited an excerpt from 
the Handbook indicating that the minimum educational requirement for a registered nurse is an 
associate's degree. There is no common standard in the industry requiring registered nurses to have a 
baccalaureate or higher degree in the field, the director stated, and the duties of the proffered position and 
its level of responsibility did not indicate complexity or authority beyond that nonnally encountered in the 
occupational field of registered nursing. The director concluded that the proffered position did not 
qualify as a specialty occupation under any of the criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
The director also found that the beneficiary did not possess a license from the State of California to 
practice nursing, in accordance with section 214(i)(2)(A) of the Act, 8 U.S.C. 5 1184(i)(2)(A). 
On appeal counsel asserts that the proffered position is that of a critical care nurse requiring a B.S.N. 
degree. The duties of a critical care nurse, counsel contends, are more specialized, demanding, and 
sophisticated than the duties of a registered nurse, and can only be performed by a nurse with experience 
in critical care situations such as that gained in a hospital's intensive care unit, pediatric ICU, neonatal 
ICU, cardiac care unit, or emergency department and recovery room. According to counsel, a critical care 
nurse in California, unlike registered nurses, does not need a state license. The lack of a license, 
therefore, is no bar to granting the beneficiary H-1B classification. 
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 HirdIBlaker 
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 DOL Handbook describes the occupation of registered nurses, in pertinent part, as follows: 
Registered nurses (RNs) work to promote health, prevent disease, and help patients cope 
with illness. They are advocates and health educators for patients, families, and 
communities. When providing direct patient care, they observe, assess, and record 
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symptoms, reactions, and progress in patients; assist physicians during surgeries, 
treatments, and examinations; administer medications; and assist in convalescence and 
rehabilitation. RNs also develop and manage nursing care plans, instruct patients and 
their families in proper care, and help individuals and groups take steps to improve or 
maintain their health. While state laws govern the tasks that RNs may perform, it is 
usually the work setting that determines their daily job duties. 
Hospital nurses form the largest group of nurses. Most are staff nurses, who provide 
bedside nursing care and carry out medical regimens. They also may supervise licensed 
practical nurses and nursing aides. Hospital nurses usually are assigned to one 
department, such as surgery, maternity, pediatrics, the emergency room, intensive care, or 
the treatment of cancer patients. Some may rotate among departments . . . . 
Home health nurses provide nursing services to patients at home. RNs assess patients' 
home environments and instruct patients and their families. Home health nurses care for 
a broad range of patients, such as those recovering from illnesses and accidents, cancer, 
and childbirth. They must be able to work independently and may supervise home health 
aides. 
Handbook, 2004-05 edition, at 301-02. In accord with the director's decision, the AAO determines that 
the duties of the proffered position reflect those of a registered nurse providing services to patients in the 
hospital andlor at home, as described in the above excerpts from the Handbook. 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 increasingly rare three-year diploma 
program at a hospital. See id. at 302. 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. 
Less than baccalaureate level education may suffice for many positions. The Handbook also notes, 
however, that certain advanced practice nurses have educational and clinical requirements beyond those 
generally applicable to all RNs. 
A policy memorandum from the legacy Immigration and Naturalization Service in November 2002 
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-IB 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, 
which makes them specialty occupations. Likewise, some nursing specialties - such as critical care, peri- 
operative, rehabilitation nursing, oncology, and pediatric nursing - require a B.S.N. or equivalent 
knowledge, making them specialty occupations as well. In addition, some nurses in high-level 
management positions - "such as an upper-level 'nurse manager' in a hospital administration," according 
to the H-1B Memorandum - require a B.S.N. or higher degree, making them specialty occupations. 
WAC 04 007 50769 
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Though counsel asserts that the position at issue in this petition is a critical care nurse requiring a B.S.N. 
degree - the duties described by the petitioner do not exceed the scope of a typical registered nurse 
providing services to patients in a hospital or home care setting. The petitioner has submitted no 
documentation demonstrating that the duties of the proffered position are primarily those of a critical care 
nurse - i.e., that the primary duties of the position are beyond those of an ordinary registered nurse in an 
acute care setting and that the position requires a B.S.N. degree rather than a sub-baccalaureate A.D.N. 
degree. Simply going on record without supporting documentation does not satisfy the petitioner's 
burden of proof. See Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of CalSfomia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Nor does the record reflect that the petitioner 
requires any advanced practice certification for the position, which might be expected if the position 
involved a clinical nurse specialist. See H-1B Memorandum. Thus, the record fails to establish that the 
proffered position is a critical care nursing specialty, as discussed in the H-IB Memorandum, and that a 
baccalaureate or higher degree in the specific specialty of nursing - i.e., a B.S.N. - is the normal 
minimum requirement for entry into the position. Accordingly, the position does not meet the first 
alternative criterion of a specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l). 
With respect to the second alternative criterion of a specialty occupation, there is no evidence in the 
record that a B.S.N. degree is common to the industry in parallel positions among similar organizations, 
as required for the proffered nursing 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 be performed only by an individual with a B.S.N. degree, as required to 
qualify it as a specialty occupation under the second prong of 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2). 
As for the third alternative criterion of a specialty occupation, the record indicates that the proffered 
position js newly created. Therefore, the petitioner cannot demonstrate that it normally requires a B.S.N. 
degree or its equivalent for the position. Accordingly, the position does not qualify as a specialty 
occupation under 8 C.F.R. 5 214.2(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. 9 214.2(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 are so 
specialized or complex that they could not be performed by an experienced individual with A.D.N. level 
knowledge in nursing. 
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. 5 214.2(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. 3 1101 
(a)( 15)(H>(i)(b>. 
With respect to the beneficiary's qualifications to perform the services of a specialty occupation, counsel 
asserts that a critical care nurse, unlike a regular registered nurse, does not require a state license. 
Counsel cites no authority and provides no evidentiary support for its claim. 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 (BLA 1980). California, the state of intended 
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employment, requires nurses to be licensed. See Handbook, id., at 302. The record indicates that the 
beneficiary does not have a license, or a temporary license, from the State of California to practice 
nursing. Nor is there any evidence that the beneficiary is allowed by the State of California 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. 5 214.2(h)(4)(v)(A)(A), (B), and (C), 
supra. 
In accordance with 8 C.F.R. 5 103.2(b)(12) a petitioner must establish that the beneficiary 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. Comm. 
1978). Since the beneficiary was not licensed to practice nursing at the time the H-1B petition was filed 
on October 8, 2003, she was not qualified to perform the services of the 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.