dismissed H-1B Case: Quality Control Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
identifying data dc' .' ad to 
prevent cle:~r\y IJ. md 
bvasion of perm pri~y 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 04 260 52909 Office: VERMONT SERVICE CENTER Date: AUG 2 5 ?k:, 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(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, Chief 
Administrative Appeals Office 
EAC 04 260 52909 
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 retail gasoline business doing business as A.D. Shell, Inc. It seeks to employ the 
beneficiary as a part-time quality control engineer. The petitioner endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to 9 lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1 101(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 and additional evidence including the newspaper posting for the proffered position 
and a "position review" that was submitted for the petitioner's former quality control engineer. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 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. 9 214.2(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. 
EAC 04 260 52909 
Page 3 
The petitioner is seeking the beneficiary's services as a part-time quality control engineer. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's August 31, 2004 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: maintaining all electronic gas pumps and computers; 
recommending methods to ensure efficiency; identifying and appraising the condition of equipment; 
analyzing control factors contributing to occupational hazards; conducting research and preparing educational 
materials related to fire prevention; and conducting training activities related to quality control. The petitioner 
indicated that the beneficiary is qualified for the position because he holds a bachelor's degree in civil 
engineering. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so complex as to require a bachelor's degree. The director found further that the petitioner failed to 
establish any of the criteria found at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position qualifies as a specialty occupation. Counsel 
states further that the petitioner's former quality control engineer was approved for H-1B status, thereby 
demonstrating that the petitioner normally requires a bachelor's degree in industrial engineering or an 
equivalent thereof. As supporting documentation, counsel submits the newspaper posting for the proffered 
position and a "position review" that was submitted for the petitioner's former quality control engineer. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. fj 214.2(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. 5 214.2(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 Department of Labor's 
Occupational Outlook Handbook (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 Hird/Blaker Corp. v. Suva, 7 12 F. 
Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position, which is similar to that 
of an occupational health and safety specialist or technician, is a specialty occupation that requires a bachelor's 
degree in civil engineering. A review of the Occupational Health and Safety Specialists and Technicians 
occupational category in the Handbook, 2006-2007 edition, finds no evidence that a baccalaureate or higher 
degree, or its equivalent, is normally required for an occupational health and safety specialist or technician job, as 
described herein. The Handbook states, in part: "All occupational health and safety specialists and technicians are 
trained in the applicable laws or inspection procedures through some combination of classroom and on-the-job 
training. Awards and degrees in programs related to occupational safety and health include 1-year certificates, 
associate degrees, bachelor's degrees, and graduate degrees." In this case, the petitioner is a retail gasoline 
business doing business as A.D. Shell, Inc. Although the petitioner asserts that it has six employees and a 
EAC 04 260 52909 
Page 4 
gross annual income of $2,188,003.87, the record contains no evidence in support of this assertion, such as 
quarterly wage reports and federal income tax returns. Further, although the petitioner claims that it has ongoing 
expansion plans to acquire additional gasoline stations in Maryland and Virginia, there is no documentation of 
record that current expansion plans are underway. Simply going on record without supporting documentary 
evidence is not sufficient for the purpose 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)). 
Counsel asserts that CIS has already determined that the proffered position is a specialty occupation since CIS 
has approved another, similar petition in the past. This record of proceeding does not, however, contain all of 
the supporting evidence submitted to the service center in the prior case. In the absence of all of the 
corroborating evidence contained in that record of proceeding, the documents submitted by counsel are not 
sufficient to enable the AAO to determine whether the position offered in the prior case was similar to the 
position in the instant petition. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. $ 103.8(d). In 
making a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the 
prior case was similar to the proffered position or was approved in error, no such determination may be made 
without review of the original record in its entirety. If the prior petition was approved based on evidence that 
was substantially similar to the evidence contained in this record of proceeding, however, the approval of the 
prior petition would have been erroneous. CIS is not required to approve petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Neither CIS nor any other agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825 F.2d 1084, 1090 
(6th Cir. 1987), cert denied, 485 U.S. 1008 (1988). 
The record also contains an evaluation from an evaluator of a company that specializes in evaluating 
academic credentials, who is also a university professor in industrial engineering. The evaluator asserts, in 
part: "The position of Quality Control Engineer would be typically filled by a person with a minimum of a 
Bachelor of Science in Industrial Engineering degree or its equivalent . . ." The opinion rendered by the 
evaluator is not probative. Despite his experience in preparing credential evaluation reports, neither his 
advisory opinion report nor any other evidence of record substantiates that he is qualified as an expert on the 
hiring practices and recruitment of quality control engineers. The record does not indicate that the evaluator 
has adequate knowledge of the particular issue here. He does not address or demonstrate knowledge of the 
petitioner's particular business operations. He does not relate any personal observations of those operations or 
of the work that the beneficiary would perform, nor does he state that he has reviewed any projects or work 
products related to the proffered position. CIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. However, where an opinion is not in accord with other information or is in any 
way questionable, CIS is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 1 9 I&N Dec. 79 1 (Comm. 1 988). 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from firms, individuals, or professional associations regarding an industry 
standard, or documentation to support the complexity or uniqueness of the proffered position. 
EAC 04 260 52909 
Page 5 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that the petitioner's former quality control 
engineer holds a bachelor's degree in industrial engineering. The petitioner's creation of a position with a 
perfunctory bachelor's degree requirement will not mask the fact that the position is not a specialty 
occupation. CIS must examine the ultimate employment of the alien, and determine whether the position 
qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 F. 3d 384 (5' Cir. 2000). The critical 
element is not the title of the position or an employer's self-imposed standards, but whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into the 
occupation as required by the ~ct.' To interpret the regulations any other way would lead to absurd results: if 
CIS were limited to reviewing a petitioner's self-imposed employment requirements, then any alien with a 
bachelor's degree could be brought into the United States to perform a menial, non-professional, or an 
otherwise non-specialty occupation, so long as the employer required all such employees to have 
baccalaureate or higher degrees. See id. at 388. 
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. 8 214.2(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. 8 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied. 
' The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387.