dismissed H-1B Case: Pharmaceuticals

rdentifying data deleted tci 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: -EAC 04 078 53363 Office: VERMONT SERVICE CENTER Date: OCT 0 1 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(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 
EAC 04 078 53363 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant 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 manufactures and distributes medicines and pharmaceuticals. It seeks to employ the beneficiary 
as a part-time sterile production specialist. The petitioner endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to $ 10 1 (a)( 1 5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
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. 
Pursuant to 8 C.F.R. $ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(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. 
$ 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) 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 
director's denial letter; and (5) 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 part-time sterile production specialist. Evidence of the 
beneficiary's duties includes: the 1-129 petition; counsel's undated letter in support of the petition; and the 
EAC 04 078 53363 
Page 3 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: compounding batches of clearness products based upon established formulation 
and manufacturing procedures; sterilizing components, products, and equipment; helping supervise 
environmental control and filing of clean-room products; following and enforcing good manufacturing 
processes; mixing components; and sterilizing solutions and equipment. The petitioner indicated that a 
qualified candidate for the job would possess a bachelor's degree in biotechnology. 
The director found that the proffered position, which is similar to that of a science technician, was not a 
specialty occupation. Citing to the Department of Labor's Occupational Outlook Handbook (Handbook), 
2002-2003 edition, the director noted that the minimum requirement for entry into the position was not a 
baccalaureate degree or its equivalent in a specific specialty. The director found further that the petitioner 
failed to establish any of the criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position of sterile production specialist is the name given 
to a production superintendent in the pharmaceutical industry, a position that requires a related bachelor's 
degree. Counsel states further that the Dictionary of Occupational Titles (DOT) assigns the position an SVP 
rating of 8, which according to counsel, requires a degree to enter into the position. Counsel also states that 
the proposed duties are so highly complex as to require a related bachelor's degree. Counsel additionally 
states: "This [sic] credentials are necessary as they give the qualified candidate the theoretical and practical 
knowledge to provide the organization with the best possible new outlook and better promotion of the 
restaurants and its products." Counsel submits a letter from a similar business as supporting documentation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria 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 Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. 
Minn. 1999)(quoting HirdIBlaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Counsel's assertion on appeal that the proffered position is known as that of a production superintendent in 
the pharmaceutical industry is noted. The AAO routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. A review of the Handbook, 2004-2005 edition, 
finds that an industrial production manager, in some instances, may qualify as a specialty occupation; in this 
case, however, the AAO does not concur with counsel that the proffered position is a specialty occupation. On 
appeal, counsel states, in part: "This [sic] credentials are necessary as they give the qualified candidate the 
theoretical and practical knowledge to provide the organization with the best possible new outlook and better 
promotion of the restaurants and its products." As this statement does not appear to relate to the instant 
petition, the AAO must question whether the views expressed in counsel's brief relate to the instant petition 
and beneficiary. The record contains no explanation for this inconsistency. It is incumbent upon the petitioner 
EAC 04 078 53363 
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to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 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. Matter of Ho, 19 I&N Dec. 582, 59 1 (BIA 1988). It 
is further noted that, although counsel asserts that the petitioner is one of the fastest growing and highly 
related pharmaceutical companies, the record contains no evidence in support of his assertion. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). In view of the foregoing, the nature of the proffered position is unclear. 
Counsel's reference to and assertions about the relevance of information from the DOT are not persuasive. 
The DOTS SVP rating does not indicate that a particular occupation requires the attainment of a 
baccalaureate or higher degree, or its equivalent, in a specific specialty as a minimum for entry into the 
occupation. An SVP rating is meant to indicate only the total number of years of vocational preparation 
required for a particular position. The classification does not describe how those years are to be divided 
among training, formal education, and experience, nor specifies the particular type of degree, if any, that a 
position would require. 
Counsel's comments regarding the type of credentials required for the proffered position in the petitioner's 
industry are without merit. Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Regarding parallel positions in the petitioner's industry, the petitioner submits a letter from the president of a 
similar business who asserts, in part, that positions such as the proffered position require a related bachelor's 
degree. The writer, however, provides no evidence in support of his assertion. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The record also does not include any evidence from professional associations regarding an industry standard, 
or documentation to support the complexity or uniqueness of the proffered position. The petitioner, therefore, 
has not established the criteria set forth at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. In a letter, dated February 10, 2004, counsel states that the petitioner's 
other sterilization production specialist holds a bachelor's degree in pharmacy. The record, however, does not 
contain any evidence of the petitioner's past hiring practices and therefore, the petitioner has not met its burden of 
proof in this regard. 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)). 
EAC 04 078 53363 
Page 5 
Finally, the AAO turns to the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4). 
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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.