dismissed H-1B Case: Optometry

U.S. Citizenship 
and Immigration 
Services 
In Re: 7630946 
Appeal of Nebraska Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 2, 2020 
The Petitioner, an optometry, seeks to temporarily employ the Beneficiary as an "optometric 
practitioner" under the H- IB nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(15)(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 Nebraska Service Center denied the petition, concluding that the proffered position 
does not qualify as a specialty occupation . On appeal, the Petitioner submits additional evidence and 
asserts that the Director erred. 
Upon de nova review , we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
Initially, the Petitioner stated that "[the Beneficiary] will perform his duties only under the direct 
supervision of a licensed [ o ]ptometrist." The Petitioner specified that "[ t ]he duties of [ the Beneficiary] 
do not constitute the practice of optometry. [The Beneficiary] will not prescribe eye glass/corrective 
lenses or diagnose, detect or treat patients." Instead, the Petitioner described the Beneficiary's duties 
as follows: 
• Assisting in the examination of patients by taking detailed history, visual acuities, 
subjective refraction at distance and near; 
• Evaluation of anterior segment via slit lamp biomicroscopy; and 
• Presentation of patient's case to optometrist. 
The Petitioner initially stated that"[ a ]11 [ o ]ptometric [p ]ractitioner positions at [the Petitioner] require 
that the applicant possess at least a Bachelor's degree," without identifying a specific academic 
specialty. 
In response to the Director's request or evidence (RFE), the Petitioner described the position's duties, 
and the percentage of the Beneficiary's time required to perform them, as follows: 
• Administer direct examination of the patient(s); Obtain detailed patient history, 
following the standards as required by and outlined the [sic] current [Petitioner] 
coding literature; Perform the measurement, recording, and preliminary 
interpretation of visual perception, subjective refraction manifest refraction [sic] 
and determination of spectacle prescription; Determine if patient is myopic or 
hyperopic [50%]; 
2 
• Perform, record and provide a preliminary explanation for required neurological 
testing including the function of the intra-ocular muscles and ocular motility; 
Perform the examination of the pupil for irregularity and afferent defect(s), and the 
identification of gross defect( s) in visual field [ 14%]; 
• Evaluate and the record [sic] the findings of the anterior sections of the globe and 
adnexa for disease, defects, and injury using appropriate magnification and 
instruments (bio microscopes, anterior segment photography, or anterior segment 
[o]cular [c]oherence [t]omography) [30%]; 
• Perform contact lenses fittings and follow up evaluations, including determining 
resolution ofresidual refractive error, movement, centration and overall subjective 
comfort of the contact lens; Present evaluation finding to optometrist [5%]; and 
• Provide additional assistance, as needed, under direction of optometrist [ 1 % ] . 
In response to the RFE, the Petitioner provided two statements regarding the position's minimum 
requirements. After describing the duties quoted above, the Petitioner stated that the minimum 
requirements include a "Bachelor's degree in Optometry." However, in a separate letter the 
Petitioner's vice president of human resources repeated the initial statement that "[the Petitioner] 
require[ s] individuals employed as [ o ]ptometric [p ]ractitioner to hold at least a Bachelor's degree, or 
the foreign equivalent," without identifying a specific academic specialty. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or its 
equivalent, commensurate with a specialty occupation. 2 
On appeal, the Petitioner does not assert, and the record does not support the conclusion, that the 
proffered position qualifies as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(]) or (2). 
Instead, the Petitioner asserts that it "normally requires a degree or its equivalent for the positon, and 
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." Accordingly, we 
limit our analysis to 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) and (4). 
However, first, we note that the Petitioner asserts on appeal that "the position ([ s ]enior [ o ]pthalmic 
[sic] [m]edical [t]echnologist, which [the Petitioner] has renamed [o]ptometric [p]ractitioner) has 
already been certified by the U.S. Department of Labor [(DOL)] as a specialty occupation." In support 
of this assertion, the Petitioner submits evidence of DOL's Form 9089, Application for Permanent 
Employment Certification, and prior approvals of H-1 B petitions for the Beneficiary and other 
employees. However, the Form 9089 is used to hire certain skilled workers permanently in the United 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
3 
States under section 203(b) of the Act, 8 U.S.C. § 1153(b); it is not for specialty occupation workers, 
which is nonimmigrant classification under section 2 l 4(i)(l) of the Act. 3 
In terms of prior approvals, we are not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. See 
Matter o_f Church Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore, we are not be bound to follow 
a contradictory decision of a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 
WL 282785, at *2 (E.D. La. 2000). 
A. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 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. If we were limited solely to reviewing the Petitioner's claimed self-imposed 
requirements, then any individual with a bachelor's degree could be brought to the United States to 
perform any occupation as long as the Petitioner created a token degree requirement. Id. Evidence 
provided in support of this criterion may include, but is not limited to, documentation regarding the 
Petitioner's past recruitment and hiring practices, as well as information regarding employees who 
previously held the position. 
On appeal, the Petitioner asserts that it "created a special pos1t10n for the three [ o ]ptometric 
[p ]ractitioners whose credentials we included in Exhibit 8 of the RFE." The Petitioner asserts "this 
position is filled by an individual who possesses a unique skill set: although unable to be licensed for 
the practice of Optometry in the United States, the candidate was educated as a Doctor of Medicine 
with a specialty in Opthalmology in another country." The Petitioner farther states that, other than the 
Beneficiary, "these two examples are currently the only ones in the company." However, the 
Petitioner's requirements for positions which it asserts to have created as "special position[ s ]" do not 
establish what the Petitioner normally requires. The test to establish a position as a specialty 
occupation is not the education or experience of a proposed beneficiary, but whether the position itself 
requires at least a bachelor's degree in a specific specialty, or its equivalent. 
3 Certification of Form 9089 means that there are not sufficient U.S. workers available to accept the job opportunity in the 
area of intended employment and that the employment of the foreign worker will not adversely affect the wages and 
working conditions of similarly employed U.S. workers. 20 C.F.R. § 656.1. 
For H-lBs, a petitioner submits the Form 9035 or labor condition application (LCA) to DOL to demonstrate that it will 
pay an H-1 B worker the higher of either the prevailing wage for the occupational classification in the area of employment 
or the actual wage paid by the employer to other employees with similar duties, experience, and qualifications. Section 
2 l 2(n)( I) of the Act; 20 C.F.R. § 655.731 (a). However, "[c]ertification by the [DOL] of a labor condition application in 
an occupational classification does not constitute a determination by that agency that the occupation in question is a 
specialty occupation." 8 C.F.R. § 214.2(h)(4)(i)(B)(2). Rather, DOL certification of an LCA indicates that "all items on 
[DOL] Form ET A 9035 or [DOL] Form ET A 9035E have been completed, the form is not obviously inaccurate, and in 
the case of [DOL] Form ETA 9035, it contains the signature of the employer or its authorized agent or representative," not 
that the position qualifies as a specialty occupation. 20 C.R.R. § 655.740(a)(l). In tum, DHS, through USCIS, not DOL 
"shall determine whether each occupational classification named in the certified [LCA] is a specialty occupation .... " Id. 
4 
Moreover, as noted above, the Petitioner's degree requirements for the position are inconsistent. After 
initially stating that the Petitioner requires "at least a Bachelor's degree," without identifying a specific 
academic specialty, it altered its degree requirement in response to the Director's RFE, stating instead 
that the minimum requirements include a "Bachelor's degree in Optometry." On appeal, the Petitioner 
erroneously relies on the Form 9089, and asserts that "the position requires a Bachelor's degree plus 
five (5) years of experience." 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition 
may not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
As noted above, despite adding a specific specialty-which its statement lacked at the time of filing­
to its degree requirement in response to the Director's RFE, the Petitioner's vice president of human 
resources repeated the initial statement that "[ the Petitioner] require[ s] individuals employed as 
[o]ptometric [p]ractitioner to hold at least a Bachelor's degree, or the foreign equivalent," again 
without identifying a specific academic specialty. Moreover, on appeal, the Petitioner adds an 
experience requirement to the position. Accordingly, the record does not consistently establish the 
Petitioner's requirements for the position. 
In summation, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
B. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that 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 in a specific specialty, or its 
equivalent. 
We first note that, as discussed, the Petitioner does not usually associate the position's specific duties 
with the attainment of a bachelor's or higher degree in a specific specialty because, as discussed above, 
the Petitioner has not consistently established its requirements for the position. 
We next note that the extent of the information in the DOL's Occupational Outlook Handbook 
(Handbook) 4 about the "[t]ypical entry-level education" for "Ophthalmic Medical Technologists" 5 is 
4 We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety of 
occupations that it addresses. However, we do not maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. 
5 On the LCA submitted in support of the H-lB petition, the Petitioner designated the proffered position under the "Health 
Technologists and Technicians, All Other" occupational category, corresponding to the SOC code 29-2099 from the 
Occupational Information Network (O*NET). The position's duties, quoted above, appear consistent with those in the 
"Ophthalmic Medical Technologists" subcategory, corresponding to the SOC code 29-2099.05. See O*NET OnLine 
Summary Report for "29-2099.05 - Ophthalmic Medical Technologists," http://www.onetonline.org/link/summary/29-
2099.05 (last visited Feb. 28, 2020). 
5 
a "[p]ostsecondary nondegree award." Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Data for Occupations Not Covered in Detail, https://www.bls.gov/ooh/about/data­
for-occupations-not-covered-in-detail.htm (last visited Feb. 28, 2020) ( emphasis added). 6 Similarly, 
the O*NET summary report for "Ophthalmic Medical Technologists" assigns this occupational 
subcategory a Job Zone "Three" rating, which groups it among occupations for which "[ m Jost ... 
require training in vocational schools, related on-the-job experience, or an associate's degree." 
O*NET OnLine Summary Report for "29-2099.05 - Ophthalmic Medical Technologists," 
http://www.onetonline.org/link/summary/29-2099.05 (last visited Feb. 28, 2020); O*NET OnLine 
Help - Job Zones, http://www.onetonline.org/help/online/zones (last visited Feb. 28, 2020). 
Accordingly, neither the Handbook nor O*NET indicate that typical positions in the occupational 
category are usually associated with a bachelor's or higher degree, or its equivalent, regardless of a 
specific specialty. 7 
On appeal, the Petitioner asserts that "[t]he position of [o]ptometric [p]ractitioner is a much more 
senior role than that of a basic ophthalmic medical assistant and optometric assistant described in the 
[Handbook] or the typical Optometric Tech that is often employed by [the Petitioner's rebranded 
business name], as evidenced by the substantial salary ... offered to [the Beneficiary] as well as the 
complexity of the duties." 
Although a salary and a wage-level designation on an LCA may be a factor to consider to determine 
a position's specialization and complexity, in this case the record contains inconsistencies that 
undermine the Petitioner's claims regarding the proffered position. We must evaluate the substantive 
nature of a position, in order to determine the degree of specialization and complexity of the specific 
duties, which is the focus of criterion 4. If a position's offered salary, wage-level designation, or 
characterization of seniority is only symbolic and its specific duties are not in fact 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 occupation would not meet 
the statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the Act; 
8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"); see also 8 C.F.R. § 
214.2(h)( 4)(iii)(A)( 4). 
Offsetting the Petitioner's assertion on appeal that the proffered position is a "senior role" with 
complex duties, the Petitioner initially described at length what the Beneficiary would not do: 
[The Beneficiary] will perform his duties only under the direct supervision of a licensed 
[ o ]ptometrist. The duties of the [ o ]ptometric [p ]ractitioner do not constitute the 
practice of optometry. [The Beneficiary] will not prescribe eye glass/corrective lenses 
or diagnose, detect or treat patients. While [the Beneficiary] may use certain 
6 There are some occupational categories, such as "Health Technologists and Technicians, All Other," which the Handbook 
does not cover in detail, and instead provides only summary data. 
7 The Director discussed typical duties-including quoting language rrom the Handbook-of a position in the "Medical 
Assistants" occupational category, corresponding to SOC code 31-9092. See Bureau of Labor Statistics, U.S. Dep't of 
Labor, Occupational Outlook Handbook, Medical Assistants, https://www.bls.gov/ooh/healthcare/medical-assistants.htm 
(last visited Feb. 28, 2020). However, the Petitioner did not designate the proffered position in that occupational category. 
The Director did not explain why she discussed the typical duties in an occupational category other than the one in which 
the Petitioner designated the proffered position. 
6 
instruments for the purpose of forth er evaluation of the patient by the [ o] ptometrist, the 
[ o] ptometric [p ]ractitioner will not be functioning as an [ o] ptometrist and is not subject 
to any licensing requirements. 
Given that the Petitioner stated the Beneficiary "will perform his duties only under the direct 
supervision of a licensed [ o ]ptometrist," the record raises questions regarding the extent of the 
position's seniority-or even its independence. Additionally, because the Petitioner explained that 
the Beneficiary "will not prescribe eye glass/corrective lenses or diagnose, detect or treat patients," 
the Beneficiary's most time-consuming (50%) duty of obtaining a patient's history and recording a 
patient's "preliminary interpretation of visual perception" does not appear to be "a much more senior 
role than that of a basic ophthalmic medical assistant and optometric assistant." The record indicates 
that the Beneficiary would not "exercis[e] judgment" while "perform[ing] his duties only under the 
direct supervision of a licensed [ o ]ptometrist." Rather, the Beneficiary's duties appear to be 
coordinated by the licensed optometrist under whose direct supervision the Beneficiary would perform 
his work. 
Regardless of the conflicting assertions regarding the extent of the proffered position's seniority, the 
record does not contain documentary evidence of the type of records of "preliminary interpretation of 
visual perception" and other patient information the Beneficiary would create, and the methodology 
the Beneficiary would use in order to create such records, in order for us to determine the extent of the 
position's specialization and complexity. The record does not establish the extent to which the 
knowledge required to perform the Beneficiary's other duties is usually associated with a bachelor's 
or higher degree in a specific specialty, or its equivalent, for similar reasons. 
In summation, the Petitioner has not demonstrated in the record that its proffered position is one with 
duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
III. CONCLUSION 
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. 
7