dismissed H-1B Case: Real Estate

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 084 50 19 1 Office: CALIFORNIA SERVICE CENTER Date: UC': 3 8 zm 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U. S.C. 5 1 10 1 (a)(l 5)(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 
WAC 04 084 50 19 1 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant 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 real estate mortgage solutions provider that seeks to employ the beneficiary as an industrial 
engineer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 l(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. 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 
(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 an industrial engineer. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's January 30, 2004 letter in support of the petition; and the 
WAC 04 084 50191 
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petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: directing the petitioner's activities in line with the most cost-efficient and 
productive procedures, activities, and operations concerning real estate appraisals; ensuring that real estate 
valuations conform to functional specifications and client requirements through the practical application of 
industrial engineering concepts, sales, and marketing elements; reviewing and evaluating project proposals 
and circumstantial factors such as strategic location, market value, local economic conditions, social 
implications, and cost of labor materials; studying, evaluating, and conducting research on various appraisal 
techniques taking into account current issues and trends; attending real estate appraisal reviews and budget 
deliberations and providing input on sale, resale, acquisition, lending, and loan options; recommending 
methods for improving work efficiency and reducing waste of materials, time, and utilities; and participating 
in the recruitment of new personnel and the performance appraisal of current personnel. The petitioner 
indicated that the beneficiary is qualified for the job because she possesses a foreign bachelor's degree in 
industrial engineering and related work experience. 
The director found that the proffered position was not a specialty occupation because the job is not an 
industrial engineering position; it is similar to a management analyst position. The director found further that, 
as the petitioner had not submitted requested documentation, such as copies of federal income tax returns and 
DE-6 quarterly wage reports for the State of California, the reliability and sufficiency of the petitioner's other 
evidence were in question. The director also found that the petitioner failed to establish any of the criteria 
found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the director misclassified the proffered position. Counsel states further 
that in order to ensure "long-term, sustained, and increased business dealings," the petitioner must hire an 
engineering professional. 
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. 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 Harzdbook (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 th~at 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. Sava, 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 is that of an 
industrial engineer. None of the beneficiary's job duties entails the level of responsibility of that occupation. 
Furthermore, although the director requested copies of the petitioner's Form DE-6 quarterly wage and 
withholding reports and Form 941 federal quarterly wage reports for all of its employees for the last three 
quarters, as well as federal income tax returns for 2001 and 2002, the petitioner's chief information officer 
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submitted only four Form 941 quarterly federal tax returns, signed on December 31, 2003, reflecting a Las 
Vegas, Nevada address, and indicated that he was not submitting any federal income tax returns because "we 
have just recently started our operations." Information on the petition, however, indicates that the petitioner 
was established in 2001 and has a gross annual income of $400,000. The record, however, contains no 
explanation for this inconsistency. It is incumbent upon the petitioner 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, 591 (BIA 1988). Failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 3 103.2(b)(14). 
Regarding parallel positions in the petitioner's industry, the petitioner noted that CIS approved other petitions 
that had been previously filed on behalf of industrial engineers. The director's decision does not indicate 
whether he reviewed the prior approvals of the other nonimmigrant petitions. If the previous nonimmigrant 
petitions were approved based on the same unsupported assertions that are contained in the current record, the 
approval would constitute material and gross error on the part of the director. The AAO is not required to 
approve applications or 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). It would be absurd to suggest that CIS or any 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). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrailt petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Or~hestr~a v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
200 I), cert. denied, 122 S.Ct. 5 1 (2001). 
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 fort11 at 8 C.F.R. 3 214,2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at El C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As information in the record indicates that the proffered position is a new 
position, the petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(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. 3 2 14.2(h)(4)(iii)(A)(4). 
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Page 5 
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. tj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.