dismissed H-1B Case: Nursing

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 227 54040 Office: NEBRASKA SERVICE CENTER Date: Am 1 2 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section IOl(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 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 
LIN 04 227 54040 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant 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 provides nursing staff and it seeks to employ the beneficiary as a supervisory nurse. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to section 10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1 lOl(a)(lS)(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 and previously submitted evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 8 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. 5 214.2(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. 9 214.2(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) the 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 
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director's denial letter; and (5) the 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 supervisory nurse. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to the petitioner's July 22, 
2004 letter, the beneficiary would perform duties that entail assessing the skills of Indian nursing candidates 
and the needs of the petitioner's United States clients; monitoring the performance of Indian nurses and 
training them on an on-going basis; performing nursing services for clients of the petitioner so as to enable the 
beneficiary to maintain her nursing skills and understand the needs of healthcare providers in the United 
States. The submitted document entitled "Job Description" includes the duty of maintaining a log of the 
nurses placed in the United States with clients. The petitioner requires a baccalaureate degree (or its 
equivalent) in nursing or a related discipline, and the ability to speak the English and Hindi languages. 
The director stated that the petitioner is an employment agency or consulting firm that provides contract 
employees to other businesses, and that its client, Resource One, is also a consulting company that furnishes 
contract employees to other businesses. The director stated that the ultimate employment of the beneficiary 
must be examined to determine whether the proposed position qualifies as a specialty occupation. According 
to the director, in Defensor v. Meissner, 201 F. 3d 384 (5" Cir. 2000), the court held that the Immigration and 
Naturalization Service, now CIS, reasonably interpreted the statute and the regulations when it required the 
petitioner to show that the entities ultimately employing the foreign nurses require a bachelor's degree for all 
employees in that position. The court found that the degree requirement should not originate with the employment 
agency that brought the nurses to the United States for employment with the agency's clients. Resource One, the 
director stated, claims the beneficiary will perform supervisory nursing duties for its client, Henry Ford Hospital. 
The director stated that the petitioner did not submit a copy of the agreement between Resource One and Henry 
Ford Hospital, and that without this document he could not find that the proffered position qualifies as a specialty 
occupation. The director concluded that the petitioner established none of the criteria at 
8 C.F.R. 4 214.2(h)(4)(iii)(A). 
On appeal, counsel asserts that Defensor is distinguishable from the petition offered here. According to 
counsel, the employment agency, Resource One, has a contractual agreement with the petitioner which states 
that Resource One will pay the beneficiary's salary in exchange for her services as a supervisory nurse. 
Counsel asserts that although Resource One was to place the beneficiary at the Henry Ford Hospital, the 
beneficiary was also to have performed services for Resource One itself, such as supervising, teaching, 
evaluating, and analyzing and monitoring nurses. Counsel states that in Defensor the employment agency did 
not retain any of the services of the nurses. According to counsel, because Resource One retains the 
beneficiary's services, it remains the beneficiary's actual or ultimate employer. Counsel maintains that a 
contract between Resource One and Henry Ford Hospital is not required as the beneficiary will perform 
services directly for Resource One and Resource One will pay her salary. Counsel states that the beneficiary 
must take the NCLEX exam, which cannot be taken in India, before a contract can be finalized with Henry 
Ford Hospital. Counsel contends that the position offered here is that of a supervisory nurse; it is not an 
ordinary nurse, which was the position in Defensor. Counsel states that Resource One's requirement that all 
LIN 04 227 54040 
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nurses possess a bachelor's or higher degree is reasonable in light of the complexity and specialized duties 
associated with a supervisory nurse. According to counsel, as there is no specialty degree for a supervisory 
nurse, the required skills are attained through a combination of experience and education. Counsel maintains 
that the proposed duties, such as speaking Hindi, exceed those of an ordinary nurse. Counsel discusses Tapis 
Int'l vs. INS, 94 F. Supp. 2d 172 (D. Mass. Apr. 2000), and states that the beneficiary's education, work 
experience, and knowledge of the Hindi language qualify her for the proposed position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. tj 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
Factors often considered by CIS when determining these criteria include: whether the Department of Labor's 
Occupational Outlook Handbook (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 1 15 1, 1 165 (D.Minn. 1999)(quoting Hird/Blaker 
Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, 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. 
The AAO finds an inconsistency in the submitted evidence as to the services the beneficiary will perform and for 
whom they will be performed. The contract entered into on November 25, 2003 between the petitioner and 
Resource One states that the petitioner will provide nurses for Resource One for placement within the healthcare 
industry; the nurses will be placed with Resource One for one year; Resource One will be responsible for their 
day-to-day employment needs after they enter the country; and Resource One has the right of first refusal with 
nurses supplied by the petitioner. An undated letter from Resource One states that the beneficiary will be 
employed by Resource One as a supervisory nurse on terms consistent with the contract dated April 30, 2004 
between the beneficiary and the petitioner, that the beneficiary will perform nursing services for Resource One's 
client, the Henry Ford Hospital, and will supervise and monitor the performance of Indian nurses. The AAO 
observes that the record does not contain a contractual agreement between Resource One and the Henry Ford 
Hospital; and that the undated letter conflicts with the beneficiary's duties described by the petitioner in the April 
30,2004 document entitled "Job Description" and the July 22,2004 letter of support, as these documents portray 
the beneficiary as performing services for the petitioner and its clients. On appeal, counsel states that the 
beneficiary will perform services for Resource One and that she may be placed at the Henry Ford Hospital. In 
light of the inconsistencies in the evidence, the AAO cannot determine the duties the beneficiary will ultimately 
perform or for whom they will be performed. Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective 
LIN 04 227 54040 
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evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). No evidence in the record explains or resolves the inconsistencies in the record. The AAO 
cannot determine the beneficiary's ultimate duties and whether they qualify as those of a specialty occupation. 
In the denial letter, the director stated that the court in Defensor held that the petitioner needs to show that the 
entities ultimately employing the beneficiary must require a bachelor's degree for all employees in that position, 
and that the degree requirement should not originate with the employment agency that brings the alien worker to 
the United States for employment with its clients. In light of Defensor, the director correctly determined that a 
contract or agreement between Resource One and the Henry Ford Hospital, where Resource One claimed that the 
beneficiary will provide services, was needed to establish that the proffered position qualifies as a specialty 
occupation. 
Counsel distinguishes Defensor from the instant petition by stating that even though the beneficiary was to be 
placed at the Henry Ford Hospital, Resource One was to retain the beneficiary's services by having her 
perform duties directly for Resource One. Counsel's assertion is not persuasive as the undated letter from 
Resource One conveys that the beneficiary will perform nursing services for Henry Ford Hospital, although 
she will also provide nursing training and refresher courses to Resource One's nurses. The record contains no 
evidence of a contractual agreement between Henry Ford Hospital and Resource One regarding the 
beneficiary's services; thus, the AAO cannot determine whether the duties that the beneficiary will perform 
for the hospital are those of a specialty occupation. 
Furthermore, the AAO notes that the duties described by the petitioner on page three of this decision, which 
are the duties that Resource One claims the beneficiary will provide for its company, correspond to the duties 
of a registered nurse (RN) as that occupation is depicted in the Department of Labor's Occupational Outlook 
Handbook (the Handbook). According to the Handbook, RNs "perform basic duties that include treating 
patients." Nurse educators are portrayed in the Handbook as teaching student nurses and providing 
continuing education for RNs, and nurse administrators as supervising nursing staff. Similarly, the 
beneficiary will perform nursing services for patients; and assess the skills of Indian nursing candidates, 
monitor their performance, and train them. 
The Handbook conveys that RNs, including nurse administrators and nurse educators, do not require a 
bachelor's degree in a specific specialty. The Handbook states: 
There are three major educational paths to registered nursing: A bachelor's of science degree 
in nursing (BSN), an associate degree in nursing (ADN), and a diploma. 
The AAO notes that counsel contends that Resource One has a requirement that all nurses possess a 
bachelor's or higher degree. However, the record contains no independent documentary evidence that 
substantiates his contention. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
LIN 04 227 54040 
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A baccalaureate degree in a specific specialty is not needed in order to speak the English and Hindi 
languages, which is one of the proposed duties. The Handbook describes an interpreter as follows: 
Interpreters and translators enable the cross-cultural communication necessary in today's 
society by converting one language into another. However, these language specialists do 
more than simply translate words-they relay concepts and ideas between languages. They 
must thoroughly understand the subject matter in which they work so that they are able to 
convert information from one language, known as the source language, into another, the 
target language. In addition, they must remain sensitive to the cultures associated with their 
languages of expertise. 
Interpreters and translators are often discussed together because they share some common 
traits. For example, both need a special ability, known as language combination. This enables 
them to be fluent in at least two languages-a native, or active, language and a secondary, or 
passive, language; a small number of interpreters and translators are fluent in two or more 
passive languages. Their active language is the one that they know best and into which they 
interpret or translate, and their passive language is one of which they have nearly perfect 
knowledge. 
Although some people do both, interpretation and translation are different professions. Each 
requires a distinct set of skills and aptitudes, and most people are better suited for one or the 
other. While interpreters often work into and from both languages, translators generally work 
only into their active language. 
Interpreters convert one spoken language into another-or, in the case of sign-language 
interpreters, between spoken communication and sign language. This requires interpreters to 
pay attention carefully, understand what is communicated in both languages, and express 
thoughts and ideas clearly. Strong research and analytical skills, mental dexterity, and an 
exceptional memory also are important. 
The Handbook describes the educational requirements of interpreters as follows: 
The educational backgrounds of interpreters and translators vary. Knowing a language in 
addition to a native language is essential. Although it is not necessary to have been raised 
bilingual to succeed, many interpreters and translators grew up speaking two languages. 
In high school, students can prepare for these careers by taking a broad range of courses that 
include English writing and comprehension, foreign languages, and basic computer 
proficiency. Other helpful pursuits include spending time abroad, engaging in comparable 
forms of direct contact with foreign cultures, and reading extensively on a variety of subjects 
in English and at least one other language. 
LIN 04 227 54040 
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Beyond high school, there are many educational options. Although a bachelor's degree is 
often required, interpreters and translators note that it is acceptable to major in something 
other than a language. However, specialized training in how to do the work is generally 
required. A number of formal programs in interpreting and translation are available at 
colleges nationwide and through nonuniversity training programs, conferences, and courses. 
Many people who work as conference interpreters or in more technical areas-such as 
localization, engineering, or finance-have master's degrees, while those working in the 
community as court or medical interpreters or translators are more likely to complete job- 
specific training programs. 
Based on the Handbook's information, the proposed interpretation duties would not require a baccalaureate 
degree in a specific specialty. 
For the reasons discussed in this decision, the petitioner establishes none of the criteria at 
8 C.F.R. tj 214,2(h)(4)(iii)(A): a baccalaureate or higher degree or its equivalent in a specific specialty is the 
normal minimum requirement for entry into the particular position; a specific degree requirement is common 
to the industry in parallel positions among similar organizations; the proffered position is so complex or 
unique that it can be performed only by an individual with a degree; the petitioner normally requires a degree 
or its equivalent for the position; or the nature of the specific duties is so specialized and complex that the 
knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher 
degree. 
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 on this 
ground. 
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.