dismissed H-1B Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 26, 2024 In Re: 33036188 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both: (a) the theoretical and practical application 
of a body of highly specialized knowledge; and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding the record did not 
establish the Petitioner's proffered job qualified as a specialty occupation under section 
101(a)(15)(H)(i)(b) of the Act. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
The Act at Section 214(i)(l), 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: (A) the 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) is a minimum for entry into the occupation in the United States. 
The regulation at 8 C .F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii) requires that the proffered 
position must also meet one of the following criteria to qualify as a specialty occupation: 
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 pos1t10ns 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. 
The statute and the regulations must be read together to make sure that the proffered position meets 
the definition of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) 
(holding that construction of language which takes into account the design of the statue as a whole is 
preferred); see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 
(1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations 
separately leads to scenarios where a Petitioner satisfies a regulatory factor but not the definition of 
specialty occupation contained in the statute. See Defensor v. Meissner, 201 F.3d 384, 387 5th Cir. 
2000). The regulatory criteria read together with the statute gives effect to the statutory intent. See 
Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. 
Reg. 61111, 61112 Dec. 2, 1991). 
So, we construe the term "degree" in 8 C.F.R. § 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 
supporting the statutory definition of specialty occupation. See Royal Siam Corp. v. Chertoff, 484 
F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities of a particular position"). USCIS' application of this 
standard has resulted in the orderly approval ofH-lB petitions for engineers, accountants, information 
technology professionals and other occupations, commensurate with what Congress intended when it 
created the H-1 B category. 
And job title or broad occupational category alone does not determine whether a particular job is a 
specialty occupation under the regulations and statute. The nature of the Petitioner's business 
operations along with the specific duties of the proffered job are also considered. We must evaluate 
the employment of the individual and determine whether the position qualifies as a specialty 
occupation. See Defensor, 201 F.3d 384. So, a Petitioner's self-imposed requirements are not as 
critical as whether the position the Petitioner offers requires the application of a theoretical and 
practical body of knowledge gained after earning the required baccalaureate or higher degree in the 
specific specialty required to accomplish the duties of the job. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. PROFFERED POSITION 
The Petitioner seeks to employ the Beneficiary in H-lB classification to serve as its "RN Clin III, 
Critical Care" and it submitted a labor condition application (LCA) certified for a position located 
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within the "Critical Care Nurses" occupational category as contained in the Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook). See Bureau of Labor Statistics, U.S. Dep't of 
Labor, Occupational Outlook Handbook, Registered Nurses (Apr. 17, 2024), 
https://www.bls.gov/ooh/healthcare/registered-nurses.htm. According to the Petitioner, the proffered 
job requires a minimum of a bachelor's degree (or foreign equivalent degree) in nursing and a 
registered nurse license. In its initial filing, the Petitioner stated it intended to employ the Beneficiary 
at one of its American Nurses Credentialing Center 
(ANCC) Magnet recognition does not, standing alone, elevate the proffered "RN Clin III, Critical 
Care" position to a level commensurate with that of a specialty occupation. So, the Director issued a 
request for evidence (RFE) to afford the Petitioner an opportunity to further demonstrate the specialty 
nature of its proffered "RN Clin III, Critical Care" occupation. Following the Petitioner's response to 
the RFE, the record contained a description of the duties of the proffered "RN Clin III, Critical Care" 
position, information about the Petitioner, copies of the Petitioner's job postings for other nursing 
positions, a copy of the Handbook entry for "Registered Nurses," professional profiles for nine of the 
Petitioner's employees, information about the Petitioner's ANCC Magnet Recognized status and the 
ANCC Magnet recognition program, two previous vacancy announcements for positions with the 
Petitioner, three vacancy announcements for positions the Petitioner considered similar at other 
organizations, and a copy of background reports for seven of the Petitioner's employees. The 
Petitioner also submitted a new letter from its VP of human resources as well as a supplementing letter 
in response to the RFE from its counsel. The Director denied the petition, concluding the evidence 
the Petitioner submitted both individually and within the context of the totality of the evidence lacked 
materiality, relevance, and probity to demonstrate the specialty nature of the proffered "RN Clin III, 
Critical Care" occupation. The instant appeal follows. 
III. ANALYSIS 
For the reasons below, we have determined that the Petitioner's "RN Clin III, Critical Care" position 
does not qualify as a specialty occupation. The evidence the Petitioner has submitted into the record 
does not sufficiently demonstrate that performance of the proffered job's duties requires an individual 
with a bachelor's degree in a specific related specialty, or the equivalent. 
A. First Criterion 
The Petitioner's proffered job does not qualify as a specialty occupation under the first criterion of the 
regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). To satisfy this criterion, the position must require a 
bachelor or higher degree in a specific specialty as a threshold for entry. In support, the Petitioner 
submitted a copy of the Handbook's entry for "Registered Nurses." 
The Petitioner contends the Handbook "specifically states the 'typical entry-level education for 
Registered Nurses' is a 'Bachelor's degree' and further states that although there are three educational 
pathways, 'employers - particularly those in hospitals - may require a bachelor's degree."' ( emphasis 
added). The Petitioner concludes on the basis of this excerpt from the Handbook entry that "the 
preponderance of the evidence shows that the minimum requirement [ for nursing positions] 1s 
normally a Bachelor's degree" when the nurse will serve in a hospital. We do not agree. 
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A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition 
of burden of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof 
includes both the burden of production and the burden of persuasion). First, a petitioner must satisfy 
the burden of production. As the term suggests, this burden requires a filing party to produce evidence 
in the form of documents, testimony, etc. that adheres the governing statutory, regulatory, and policy 
provisions sufficient to have the issue decided on the merits. 
As the Petitioner acknowledges on appeal, the Handbook lists "three pathways to becoming a 
registered nurse." Only one requires attaining a bachelor's degree in nursing or a nursing specialty. 
The other pathways facilitate entry to a nursing occupation with less than an educational level 
equivalent to a bachelor's degree in nursing, such as an associate' s degree in nursing or even a diploma 
from an approved nursing program. And the Handbook's statement that hospitals may elect to institute 
a bachelor's degree in nursing for nursing positions describes a potential preference of some employers 
versus a normal requirement for a certain type of employer like hospitals. So, the Handbook's entry 
for registered nurses in not sufficiently material, relevant, or probative to convincingly demonstrate a 
bachelor or higher degree in a specific specialty as a threshold for entry to the Petitioner's proffered 
"RN Clin III, Critical Care" position. 
The Petitioner has not provided sufficient documentation from a probative and authoritative source to 
conclude that a baccalaureate or higher degree or its equivalent in a specific specialty related to the 
duties of the job are normally required as a minimum qualification for entry to this particular position. 
So, the Petitioner has not satisfied the first criterion contained at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
B. First Prong of Second Criteria 
The 
Petitioner's proffered job does not qualify as a specialty occupation under the first alternate prong 
of the second criterion. The second criterion presents two, alternative prongs: (A) the degree 
requirement is common to the industry in parallel positions among similar organizations; or (B) the 
employer's particular position is so complex or unique that it can be performed only by an individual 
with a degree. The first prong, concerned with common industry practice is satisfied when the 
Petitioner establishes that their degree requirement is common to the industry in parallel positions 
among similar organizations. 
On appeal, the Petitioner contends the three job postings it provided in response to the RFE 
demonstrated a bachelor's degree in nursing or its equivalent is a common requirement in its industry 
in parallel positions. The Director concluded that the record did not contain adequate material, 
relevant, and probative evidence showcasing how the positions described in the job postings were 
parallel to its proffered position or how the organizations posting the position vacancies are similar 
organizations. 
To satisfy the first prong of the second criterion, a petitioner must establish eligibility by demonstrating 
that the degree requirement is common to the industry in parallel positions amongst similar 
organizations. The Petitioner states that its degree requirement for its "RN Clin III, Critical Care" is 
common to the industry in parallel positions among similar organizations. In support, the Petitioner 
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provided three job vacancy announcements and information about the compames placing the 
announcements. 
We regularly consider the following sources of evidence to determine if there is such a common degree 
requirement: 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 firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals." 
As noted above, the Handbook does not indicate that a bachelor's degree in a specific specialty is a 
common requirement within the industry for parallel positions among similar organizations. Nor did 
the Petitioner submit evidence from an industry professional association, or from firms or individuals 
in its industry indicating such a degree is a minimum requirement for entry into the position. 
As stated earlier, the Petitioner submitted job vacancy announcements in support of its assertion that 
the claimed degree requirement is common to the industry. To be relevant for consideration under 
this prong, the job vacancy announcements must advertise "parallel positions," and the announcements 
must have been placed by organizations that (1) conduct business in the Petitioner's industry and (2) 
are also "similar" to the Petitioner. The job vacancy announcements initially submitted by the 
Petitioner with the petition overwhelmingly described management, not clinical, nursing 
positions. And the sole job vacancy announcement purportedly describing a nuero-ICU registered 
nurse position did not contain a description of the position sufficient to evaluate whether the position 
was parallel to the Petitioner's proffered position and was placed by an employer dissimilar to the 
Petitioner because it was a staffing company. 
In response to the RFE, the Petitioner submitted three vacancy announcements. One of the job 
postings is for a "critical care nurse" in I I Whilst the job posting does identify the place 
of employment, job title, and includes a qualification summary identifying education and experience 
requirements, the posting does not contain a meaningful job description from which to draw a 
comparison to conclude it the job described in the vacancy notice is a parallel position. Moreover, 
there is no identification of the employer's name or business, stymying any inquiry into whether the 
employer is an organization similar to the Petitioner. 
Another job posting for a "critical care nurse" submitted by the Petitioner contained a job description 
necessitating, amongst other things, that the incumbent perform duties in "advanced nursing care to 
critically ill patients in the intensive care unit." It is not readily apparent from the record through 
material, relevant, and probative evidence if "advanced nursing care to critically ill patients in the 
intensive care unit" is parallel to the duties of the "RN Clin III, Critical Care" proffered by the 
Petitioner. Moreover, the employer posting the job is a large national health insurance company, 
which is not a similar organization to the Petitioner. 
The Petitioner also submitted a job posting for a "registered nurse - intensive care unit" in I 
_ with City of Hope. This job posting does not support the Petitioner's assertions because it 
permitted, as a minimum requirement for entry, individuals currently enrolled in bachelor of nursing 
programs, to apply and be hired for the position so long as they had other work experience and 
certifications. Or, in other words, applicants without a bachelor's degree in nursing were eligible for 
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hire for the posted job vacancy. And the record did not contain evidence describing how City of Hope 
was a similar organization to the Petitioner. The evidence in the record supports the Director's 
conclusion the Petitioner did not sufficiently demonstrate how the job vacancy announcements it 
submitted into the record supported the commonality of the specific specialty degree requirement in 
parallel positions among similar organizations to the Petitioner. 
The Petitioner also asserted that its ANCC Magnet recognition demonstrates that a degree requirement 
is common to its industry because ANCC Magnet recognition "imposes additional standards beyond 
those of a regular hospital." Amongst other eligibility requirements, the record reflects that ANCC 
Magnet recognition requires institutions to demonstrate that 100% of "nurse managers" and 100% of 
"nurse leaders" at the institutions have a degree in nursing (baccalaureate or graduate degree). But the 
record does not contain persuasive evidence that the "nurse manager" or "nurse leader" is a parallel 
position to its "RN Clin III, Critical Care" position. Moreover, it is not evident in the record how 
institutions achieving ANCC Magnet recognition comprise a class of organizations similar to the 
Petitioner because the eligibility criteria for ANCC Magnet recognition are not limited to organizations 
like the Petitioner. The sole requirement is that the "applicant organization" must exist within a 
"health care organization" without specifying any additional details. Or in other words, the universe 
of organizations within a health care organization may be large enough to include organizations which 
are not similar to the Petitioner that also employ nurses, such as skilled nursing facilities or inpatient 
psychiatric or rehabilitation hospitals. 
So, we conclude that the advertisements provided do not support the Petitioner's argument concerning 
eligibility under the first alternative prong of the second criteria 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Second Prong of Second Criterion and Fourth Criterion 
The Petitioner's proffered job does not qualify as a specialty occupation under the second alternate 
prong of the second criterion or the fourth criterion of the regulations at 8 C.F.R. 
§§ 214.2(h)(4)(iii)(A)(2) and (A)(4). The alternative prong of the second criterion is satisfied if the 
Petitioner shows that its particular position is so complex or unique that it can be performed only by 
an individual with a bachelor's degree in a specific specialty related to the duties of the proffered 
position or its equivalent. The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) requires a petitioner 
to establish that the nature of the specific job 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 
in a specific specialty, or its equivalent. 
The Petitioner states that its "RN Clin III, Critical Care" must possess a bachelor's degree in nursing 
(or its foreign equivalent) as a minimum qualification for entry because its particular "RN Clin III, 
Critical Care" position is complex or unique and also requires the performance of specialized duties. 
The Petitioner cites to its AANC Magnet recognition to support the complexity, specialization, and 
uniqueness of its "RN Clin III, Critical Care" position because AANC Magnet recognized institutions 
commit to hire nurses with bachelor's degrees. Whilst AANC Magnet recognition may demonstrate 
that there is a concerted effort to increase the population of nurses with bachelor's degrees in nursing, 
AANC Magnet recognition does not demonstrate whether the nursing positions at AANC Magnet 
recognized institutions are more "complex or unique" or their duties "specialized and complex" simply 
by virtue of AANC Magnet recognition. 
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The Petitioner also asserts that USCIS policy acknowledges "the private sector's 'preference for more 
highly educated nurses'" and lists critical care nurses amongst nursing positions which "may qualify 
as specialty occupations" as support for its contention that its "RN Clin III, Critical Care" position is 
a specialty occupation. However, the regulations require more than a "preference" for a bachelor's 
degree in a specific specialty to provide the theoretical and practical body of specialized knowledge 
to perform the proffered job's duties. The applicable bachelor's degree in the specialty must be a 
requirement for entry to the proffered job. 
In sum, there is no categorical eligibility for any particular job or job class to per se qualify for 
classification as a specialty occupation. Or in other words, whilst critical care nurses "may qualify as 
specialty occupations," it remains the Petitioner's burden to demonstrate eligibility with material, 
relevant, and probative evidence tending to persuasively reflect eligibility by a preponderance of the 
evidence due to the proffered job's complexity or uniqueness or the specialized and complex nature 
of the proffered job's duties. The record lacks sufficient unambiguous evidence that is material, 
relevant, and probative describing how the Petitioner's "RN Clin III, Critical Care" position is more 
"complex or unique" or its duties "specialized and complex" from positions that do not require at least 
a bachelor's degree in a specific specialty or its equivalent to perform the duties of the Petitioner's 
offered job. So, the Petitioner has not satisfied the second alternative prong of the second criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
D. Third Criterion 
The Petitioner's proffered job does not qualify as a specialty occupation under the third specialty­
occupation criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). The third criterion requires an employer to 
demonstrate that it normally requires a bachelor's degree in a specific specialty, or its equivalent, 
related to the performance of the position's job duties. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self­
imposed requirements, an organization could bring any individual with a bachelor's degree to the 
United States to perform any occupation so long as the petitioning entity created a token degree 
requirement. Id. 
The Petitioner provided a letter from its VP of human resources (initially submitted in response to the 
Director's RFE) to demonstrate that it "normally requires" a bachelor's degree in nursing (or its 
foreign equivalent) as a basic educational qualification for the "RN Clin III, Critical Care" position. 
The letter states that the Petitioner requires a bachelor's degree in nursing ( or its foreign equivalent) 
and that "a majority of its nurses now hold a Bachelor's degree as evidenced by the job descriptions 
and resumes provided. It is especially important for roles such as the "RN Clin III, Critical Care 
position to hold a Bachelor's degree as it requires greater responsibility and a broader supervisory 
component. These nurses provide critical training to the registered nurses they supervise which 
minimizes errors in the field." However, the VP of human resources' letter is internally inconsistent 
because the job description contained in the letter makes no mention of the requirement for 
"supervision" or "training" the VP of human resources claims is central to the Petitioner's requirement 
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of a bachelor's degree in nursing for entry to the proffered occupation. Or in other words, the duties 
the VP of human resources highlights to justify its degree requirement are not contained in the 
proffered job description in their letter or in the petition. This casts doubt on whether the individuals 
the Petitioner identified in the letter of its VP, as well as provided resumes, background check 
information, and educational documentation in the record are in the same position as the one described 
in the instant petition. And the two job vacancy notices are similarly insufficient to demonstrate the 
Petitioner's "conform[ance], [and] adher[ence]" to the bachelor's degree in nursing (or foreign 
equivalent) it asserts it requires for entry to the proffered "RN Clin III, Critical Care" position because 
they refer only to the job opportunities they describe, and not to a pattern or practice of hiring. 
Moreover, in their RFE and Decision, the Director identified that the Petitioner had advertised for the 
same position with requirements constituting less than a bachelor's degree in nursing (or its foreign 
equivalent) as a minimum qualification for entry to the position. Aside from referencing the Director's 
observations, the Petitioner on appeal does not provide additional clarification, information, or 
rebuttal. It basically implied without adequate material, relevant, or probative evidence that the two 
job vacancy notices it submitted constituted "a typical or usual standard, pattern, level, or type." 
The Petitioner has not persuasively established that it normally requires at least a bachelor's degree in 
a specific specialty required to perform the duties, or its equivalent, for the position. So, the Petitioner 
has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
And the Petitioner has not satisfied any of the available criteria described at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l)-( 4). So, it has not established that the proffered position is a specialty 
occupation. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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