dismissed H-1B Case: Social Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 3, 2024 In Re: 32770988 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner, a provider of services for individuals with developmental disabilities, seeks to 
temporarily employ the Beneficiary in the position of "habilitation specialist" under the H-lB 
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-lB 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 California Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position is a specialty occupation. The matter is now before us on 
appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) . .. "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 
1 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) requires that the proffered position must meet one of the following criteria to qualify as a 
II. ANALYSIS 
The Director denied the petition, concluding that, because the position's degree requirement is a 
bachelor's degree in disparate fields of study such as psychology, social work, sociology, education, 
or a human services related field, the position does not require a degree in a "specific specialty" or its 
equivalent, and therefore does not meet the statutory or regulatory definitions of a specialty 
occupation. The Director also analyzed the evidence in the record as to each of the four criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) and determined that the evidence did not establish that the position 
qualifies as a specialty occupation under any of the four criteria. For example, the Director concluded 
that the position did not qualify under 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) because, among other things, 
the Petitioner's degree requirement is substantially different from "a master's degree in rehabilitation 
counseling or a related field"-the requirement described in the Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) for "Rehabilitation Counselors," the occupational 
category provided on the Petitioner's certified labor condition application (LCA). 2 See Bureau of 
Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Rehabilitation Counselors 
(Apr. 17, 2024), www.https://bls.gov/ooh/community-and-social-service/rehabilitation­
counselors.htm. The Director also concluded that the Petitioner did not establish that the degree 
requirement is "common to the industry" as described at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) because the 
Petitioner did not demonstrate that the job postings submitted were from organizations that are similar 
to the Petitioner, and because the job postings showed a broad range of fields of study to qualify for 
the position. And the Director concluded that the Petitioner did not establish the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3) because, while the Petitioner submitted educational credentials for individuals 
that it claims to employ, the Petitioner did not provide documentation to establish that the individuals 
are or were employed in the proffered position with the Petitioner. 
On appeal, the Petitioner presents additional evidence and asserts that the proffered position is a 
specialty occupation. The Petitioner claims, among other things, that the position qualifies under the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l) because this criterion should not be interpreted so 
narrowly as to require there to be a single degree program for entry into the occupation and because 
each of the fields in its degree requirement can prepare an individual for entry into the occupation. 
The Petitioner also asserts the Handbook recognizes that some employers accept a bachelor's degree 
for the occupation and that the DOL Occupational Information Network (O*NET) supports a 
specialty occupation: (1) a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry 
into the pmticular 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. 8 C.F.R. § 214.2(h)(4)(iii)(A) must 
be read with the statutory and regulatory definitions of a specialty occupation under section 214(i)( 1) of the Act and 8 
C.F.R. § 214.2(h)(4)(ii). We construe 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. Sec Royal Siam Corp. v. Chcrtoff, 484 F.3d 139, 147 
(1st Cir. 2007) ( describing "a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"). 
2 While the Handbook is not an exclusive source of information, it can be persuasive in that it contains the duties and 
educational requirements of a wide variety of occupations; the occupational category chosen by the Petitioner is instructive 
in that it provides a framework within which to evaluate the general nature of the Petitioner's proffered job. 
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bachelor's degree requirement for the position. 3 Regarding the second criterion, the Petitioner 
presents additional job postings on appeal and asserts that the Director was incorrect to conclude that 
the job postings previously presented were not from "similar organizations." The Petitioner also 
presents additional evidence related to the third criterion and contends that it has "presented prima 
facie evidence" of this criterion based on the "representative sample of employees who were offered 
and accepted employment" in this position. 
We adopt and affirm the Director's decision, with the additional comments below addressing some of 
the specific claims raised by the Petitioner on appeal. See Matter ofBurbano, 20 I&N Dec. 872, 874 
(BIA 1994); see also Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting that the practice of 
adopting and affirming the decision below has been "universally accepted by every other circuit that 
has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit 
courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case). The Petitioner's primary contention on appeal is that 
the acceptable fields listed in its degree requirement amount to a "specific specialty" rather than 
disparate fields. However, we agree with the Director that the Petitioner has not established this by a 
preponderance of the evidence. 
While we agree with the Petitioner that there is no requirement in the statute for the required education 
to consist of one specific degree or major, there must be a sufficiently close relation between the 
required specialized studies to constitute a common "specialty" and that "specialty" must be related 
to the duties of the position. The Petitioner has not demonstrated that there is such a common specialty 
here. The Petitioner contends that each field of study prepares an individual for different aspects of 
the job. But the Petitioner does not sufficiently explain how the disparate fields of study adequately 
provide the knowledge required for the entirety of the position's disparate duties, if those duties truly 
require the theoretical and practical application of a body highly specialized knowledge. For example, 
if the therapy and treatment aspects of the position are sufficiently specialized as to require the highly 
specialized knowledge of a psychology degree, the Petitioner has not established how a degree in 
education would provide this knowledge. If the knowledge required to perform the different aspects 
of the position can be gained from a wide and disparate range of fields, then this reflects that the 
position does not require the theoretical and practical application of a highly specialized body of 
knowledge. 
Regarding the first criterion, the Petitioner on appeal justifies its variance from the Handbook's degree 
requirement by claiming that the rehabilitation counselors occupation is not "an exact match" for its 
position but only the closest fit of the available O*NET Standard Occupational Classification (SOC) 
codes. But the Petitioner also asserts that the position should be considered a specialty occupation 
because it "aligns very closely with" the rehabilitation counselor occupation. We are unpersuaded by 
the Petitioner's attempt, on the one hand, to demonstrate that its position is a specialty occupation 
based upon its close alignment with an occupational category while, on the other hand, distancing 
itself from that occupational category's actual minimum requirements. We do acknowledge that while 
the Handbook states that a master's degree is typically required, the O*NET OnLine Summary Report 
classifies the occupation as normally requiring a bachelor's degree. However, this difference in the 
3 See National Center for O*NET Development, O*NET OnLine Summary Report for 21-1015.00 - Rehabilitation 
Counselors, www.https://www.onetonline.org/link/summary/2l-1015/00. 
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typical educational level does not help the Petitioner establish that its broad range of acceptable fields 
of study, which differ from the Handbook, constitutes a "specific specialty." 
Finally, as to the Petitioner's claim that it has provided "prima facie" evidence of the third criterion­
that it "normally requires a degree," we note two points. First, 8 C.F.R. § 214.2(h)(4)(iii)(A) must be 
read in context with the statutory and regulatory definitions of a specialty occupation under section 
214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). Therefore, we construe the term "degree" as used 
8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific 
specialty that is directly related to the proposed position. Therefore, the Petitioner must demonstrate 
that its "normal, minimum requirement" is a degree in a specific specialty or its equivalent. As 
discussed above, the Petitioner has not done so here. The Petitioner may be accurately describing its 
normal minimum requirement; however, the Petitioner's requirement does not meet the statutory and 
regulatory definition of a specialty occupation under section 214(i)(l) of the Act and 8 C.F.R. 
§ 214.2(h)(4)(ii). Second, we reiterate, as noted by the Director, that the Petitioner did not provide 
documentary evidence that it employs the referenced individuals in the proffered position. The 
Petitioner provided diplomas, transcripts, and job offer letters for those individuals referenced in 
response to the RFE, and provides diplomas and transcripts for additional individuals on appeal. 
However, the Petitioner did not provide employment records, paystubs, or other evidence that it 
actually employs the individuals named on the diplomas and transcripts in the record to establish that 
it normally requires a degree or its equivalent for the position. 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
III. CONCLUSION 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Upon review of the record, we conclude that the Petitioner has not established that the 
proffered position is a specialty occupation. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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