dismissed H-1B Case: Physical Therapy

identifying data deleted to 
prevent rlr? :r! y unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 186 51256 Office: NEBRASKA SERVICE CENTER Date: Am 1 8 2636 
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. 5 1 10 1 (a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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, Chief 
Administrative Appeals Office 
LIN 04 186 51256 
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 is a rehabilitation services and staffing business that seeks to extend its authorization to employ 
the beneficiary as a physical therapist. The petitioner endeavors to classify the beneficiary as a nonimmigrant 
worker in a specialty occupation pursuant to section 10l(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner has not demonstrated that the proffered position is a 
specialty occupation or that it had complied with the terms of the labor condition application. On appeal, the 
petitioner submits a letter and additional evidence including a new labor condition application and "therapy 
services agreement." 
Citizenship and Immigration Services (CIS) regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 5 103.2(b)(12). The purpose 
of a Request for Evidence (RFE) is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. 5 103,2(b)(8). 
In this case, the petitioner was put on notice of required evidence, namely a contract, agreement, or work 
order from the actual end user client, and given a reasonable opportunity to provide it for the record before the 
visa petition was adjudicated. The petitioner failed to submit the requested evidence and now submits a 
"therapy services agreement" on appeal. However, the AAO will not consider this evidence for any purpose. 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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 
LIN 04 186 51256 
Page 3 
(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 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 physical therapist. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's June 14, 2002 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: providing therapy services as prescribed by the physician; receiving and assessing 
patients; writing plans of care; and monitoring the progress of patients. The petitioner indicated that a 
qualified candidate for the job would possess an unrestricted license to practice physical therapy in the State 
of Indiana. 
The director found that the proffered position was not a specialty occupation because the petitioner did not 
submit a copy of the contract or work order for the beneficiary's actual worksite. 
On appeal, the petitioner states, in part, that the beneficiary will be employed at Cloverdale Convalescent 
Center in Cloverdale, Indiana. The petitioner submits a new labor condition application listing the 
beneficiary's work location as Cloverdale, Indiana and a "therapy services agreement" between the petitioner 
and AEGIS Therapies, Inc. 
A review of the website at www.healthcrestenterprises.com reveals that the petitioner is a Missouri staffing 
agency for the healthcare industry. As such, the beneficiary would be performing duties at another worksite 
located in Indiana. Nowhere in the record, however, is there a comprehensive description of the beneficiary's 
proposed duties from an authorized representative of such worksite. Without such description, the petitioner 
has not demonstrated that the beneficiary would be working as a physical therapist. 
The evidence of record establishes that the petitioner is an employment contractor in that the petitioner will 
place the beneficiary at multiple work locations to perform services established by contractual agreements for 
third-party companies. The petitioner, however, has provided no contracts, work orders or statements of work 
describing the duties the beneficiary would perform for its clients and, therefore, has not established the 
proffered position as a specialty occupation. 
The court in Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000) held that for the purpose of determining 
whether a proffered position is a specialty occupation, the petitioner acting as an employment contractor is 
merely a "token employer," while the entity for which the services are to be performed is the "more relevant 
employer." The Defensor court recognized that evidence of the client companies' job requirements is critical 
where the work is to be performed for entities other than the petitioner. The court held that the legacy 
Immigration and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of the 
requirements imposed by the entities using the beneficiary's services. 
LIN 04 186 5 1256 
Page 4 
As the record does not contain any documentation that establishes the specific duties the beneficiary would 
perform under contract for the petitioner's clients, the AAO cannot analyze whether these duties would 
require at least a baccalaureate degree or the equivalent in a specific specialty, as required for classification as 
a specialty occupation. Accordingly, the petitioner has not established that the proposed position qualifies as a 
specialty occupation under any of the criteria at 8 C.F.R. fj 214.2(h)(4)(A) or that the beneficiary would be 
coming temporarily to the United States to perform the duties of a specialty occupation pursuant to 
8 C.F.R. 8 214.2(h)(l)(B)(I). 
Pursuant to 8 C.F.R. fj 214.2(h)(4)(iii)(B), the petitioner shall submit the following with an H-1B petition 
involving a specialty occupation: 
1. A certification from the Secretary of Labor that the petitioner has filed a labor 
condition application with the Secretary, 
2. A statement that it will comply with the terms of the labor condition application for 
the duration of the alien's authorized period of stay, 
3. Evidence that the alien qualifies to perform services in the specialty occupation. . . . 
The director found that the petitioner had not demonstrated that it had complied with the terms of the labor 
condition application, as it had not specified the beneficiary's actual worksite. 
On appeal, the petitioner submits a new labor condition application listing the beneficiary's work location as 
Cloverdale, Indiana. 
In this case, the record does not contain a contract or comprehensive description of the beneficiary's proposed 
duties from an authorized representative from the facility where the beneficiary will ultimately perform the 
proposed duties, in this case, Cloverdale Convalescent Center. Without such description, the petitioner has not 
demonstrated that it has complied with the terms of the labor condition application. For this additional reason, 
the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.