dismissed H-1B Case: Performing Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-C-P-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE22.2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER' 
The Petitioner, a circus, seeks to temporarily employ the Beneficiary as a "performer" 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 Vermont Service Center denied the petition, concluding that the evidence of 
record does not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decision. Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 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. 
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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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(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 have consistently interpreted 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. Chertofj; 484 F .3d 13 9, 14 7 (I st 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 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "performer." In its 
letter of support, the Petitioner stated that the Beneficiary "will be a performing circus artist in 
school assembly shows. [The Beneficiary] will be performing his juggling acts both solo and 
ensemble as well as performing on stilts and presenting his comedy pantomime chair act." 
In response to the Director's request for evidence (RFE), the Petitioner provided the following job 
duties for the position: 
The general duties of [the Petitioner's] field artist (performer) are to perform and 
teach a variety of circus skills in public and private facilities in accordance with the 
structure and format of[the Petitioner's] programs .... 
Working in tandem with professional educators, [the Petitioner's] field staff must be 
able to clearly articulate program goals to administrators, teachers, and parents .... 
The specific duties and responsibilities of the field artists are to present each of the 
programs that are offered by the [Petitioner]. 
Additionally, [the Petitioner's] employees may periodically be called upon to 
represent our organization by presenting at industry conferences, performing 
showcases or other events important to our continued success as an organization. 
2 
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In addition, the Petitioner provided a description of the various programs it offers, such as 
assemblies, artist-in residence programs, student circus, and special events. 
According to the Petitioner, the position requires a bachelor's degree in theater, performing arts, or a 
related field. 
III. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 1 Specifically, the record (1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation? 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA)4 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Entertainers and Performers, 
Sports and Related Workers, All Other" corresponding to the Standard Occupational Classification 
code 27-2099.5 
1 Although some aspects ofthe regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation in support of 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 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed in print or at the Internet 
site http://www.bls.gov/ooh/. We do not, however, 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. Nevertheless, to satisfy the first criterion, 
the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 The Petitioner is required to submit a certified LCA 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 experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
Matter of N-C-P-
We note that there are occupational categories which are not covered in detail by the 
Handbook. The Handbook suggests that for at least some of the occupations, little meaningful 
information could be developed. 
The text of the Handbook regarding the occupational category "Entertainers and Performers, Sports 
and Related Workers, All Other" is as follows: 
All entertainers and performers, sports and related workers not listed separately. 
• 2014 employment: 30,000 
• May 2016 median annual wage: Data unavailable 
• Projected employment change, 2014-24: 
• Number of new jobs: 2,100 
• Growth rate: 7 percent (As fast as average) 
• Education and training: 
• Typical entry-level education: No formal educational credential 
• Work experience in a related occupation: None 
• Typical on-the-job training: Short-term on-the-job training 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for 
Occupations Not Covered in Detail (2016-17 ed.). 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into this occupational category. 
According to the Handbook, the occupational category "Entertainers and Performers, Sports and 
Related Workers, All Other" falls into the group of occupations for which no formal education is 
needed for entry into these positions. 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is the Petitioner's responsibility to 
provide probative evidence (e.g., documentation from other objective, authoritative sources) that 
supports a finding that the particular position qualifies as a specialty occupation. For our 
determination, we will consider and weigh all of the evidence submitted. 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _I I_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
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Matter of N-C-P-
In the instant matter, the Petitioner has not provided documentation from a probative source to 
substantiate its assertion regarding the minimum requirement for entry into this particular position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by us 
include: 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 attest that such firms "routinely employ and 
recruit only degreed individuals." See ~%anti, 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms "routinely employ and recruit only degreed individuals." Nor is there any other evidence 
relevant to this prong. Thus, based upon a complete review of the record of proceedings, we find 
that the Petitioner has not satisfied the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which 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 at least a bachelor's degree in a specific specialty, or its 
equivalent. 
5 
Matter ofN-C-P-
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
Petitioner described the proffered position and its business operations. On appeal, the Petitioner 
asserts that "the position is unique and highly specialized as it requires advanced knowledge in these 
areas so that the performer can effectively teach [the] same to students.'' In addition, the Petitioner 
states that the position "is more of a "circus education specialist." 
We reviewed the record in its entirety, but the evidence does not establish eligibility under this 
criterion. The Petitioner designated the proffered position as an entry-level position within the 
occupational category (by selecting a Level I wage). 6 This designation, when read in combination 
with the Petitioner's job descriptions. suggests that the particular position is not so complex or 
unique that the duties can only be performed an individual with bachelor's degree or higher in a 
specific specialty, or its equivalent. While related courses may be beneficial in performing certain 
duties of the position, the Petitioner has not demonstrated how an established curriculum of courses 
leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to 
perform the duties of the proffered position. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references the 
Beneficiary's qualifications. However, 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. The Petitioner did not sut1iciently 
develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. 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 v. Meissner, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's 
6 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, unique, and specialized compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
.
Matter of N-C-P-
claimed self-imposed requirements, an organization could bring any individual with a bachelor's 
degree to the United States to perform any occupation as long as the petitioning entity created a 
token degree requirement. !d. 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. 
In response to the Director 's RFE, the Petitioner submitted biographic statements about three 
individuals and a resume for a fourth individual , but it did not provide copies of the individual's 
academic diplomas or transcripts. The Petitioner also provided payment information for these 
individuals. 7 Importantly, at least two of the individuals are not employees according to their Form 
1099, Miscellaneous Income, statements. Therefore , without more, the Petitioner has not established 
the relevancy ofthe information to the matter here. 
I 
Moreover, the Petitioner's business operations were established in 1984, approximately 32 years 
prior to the filing of the petition. However , the Petitioner did not provide the total number of people 
it has employed to serve in the proffered position. Consequently, it cannot be determined how 
representative the Petitioner ' s claim regarding these few individuals over a 32 year period is of its 
normal recruiting and hiring practices. 
The Petitioner has not persuasively established that it normally requires at least a bachelor's degree 
in a specific specialty, or its equivalent, for the position. Therefore, the Petitioner has not satisfied 
the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. 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. 
The Petitioner asserts that it meets this criterion; however, relative specialization and complexity 
have not been sufficiently developed by the Petitioner as an aspect of the proffered position. That is, 
the proposed duties have not been described with sufficient specificity to establish that they are more 
specialized and complex than other positions in the occupational category that are not usually 
associated with at least a bachelor ' s degree in a specific specialty , or its equivalent. We also 
reiterate our earlier comments and findings regarding the implications of the position's wage level 
7 Specifically, the documentation shows the following : 
Form W-2, Wage and Tax Statement Wages: $7,403 
Form 1099, Miscellaneous Income Nonemployee compensation : $3,500 
Form 1099, Miscellaneous Income Nonemployee compensation: $3,540 
Printouts for payments Varying amounts 
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designation on the LCA. Thus, 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). 
Because the Petitioner has not satisfied one ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. BENEFICIARY'S QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this matter should be addressed in any future proceedings. 8 
Specifically, the Petitioner did not submit an evaluation of the Beneficiary's foreign degree or 
sufficient evidence to establish that his degree is equivalent to a U.S. bachelor's degree in a specific 
specialty. As such, since evidence was not presented that the Beneficiary has at least a U.S. 
bachelor's degree in a specific specialty, or its equivalent, the petition could not be approved even if 
eligibility for the benefit sought had been otherwise established. 
V. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-C-P-, ID# 521010 (AAO June 22, 2017) 
8 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center.").