dismissed H-1B Case: Social Work

identieing data deleted 
pvent clearly ~nw-td 
invasion of pe"0d 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 100 50067 Office: CALIFORNIA SERVICE CENTER Date: ldUN 1 2 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 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 
WAC 03 100 50067 
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 healthcare facility for children who have Down Syndrome. It seeks to extend its 
authorization to employ the beneficiary as a social worker. The petitioner endeavors to classifL the beneficiary 
as a nonimmigrant worker in a specialty occupation pursuant to 9 lOl(a)(l5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj I lOl(a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation and the 
beneficiary is not qualified to perform a specialty occupation. On appeal, counsel submits a brief and 
additional evidence including a job posting and a letter from a psychiatric social worker. 
The AAO will first address the director's conclusion that the position is not a specialty occupation. 
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: 
(1) 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. 
WAC 03 100 50067 
Page 3 
The petitioner is seeking the beneficiary's services as a social worker. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's January 14, 2003 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to the document entitled "Roster of 
Facility StaffIJob Descriptions" submitted by the petitioner, the beneficiary perfoms the following duties: 
Coordinates client's [sic] programs and activities to their Case Workers from TCRC 
(Tri-Counties Regional Ctr.); 
Implements individual service plans for the clients; 
Accompanies clients in their medical, dental & other appointments; 
Prepares documentation of medical and dental status of the clients; 
Counseling clients as needed [Emphasis added.]; 
Dispenses medication; 
Ensures client's proper hygiene and grooming; and 
In-charge of taking care [of] business finances; clients' personal and incidental funds, etc. 
The AAO notes that counsel's May 17, 2004 letter of reply to the director's request for evidence states that 
the position requires the beneficiary to use her "psychological background," that she would ensure that the 
facilities' residents are "properly socialized," and that she "will encourage positive self esteem." The 
petitioner indicated that the beneficiary is a qualified candidate for the job because she possesses a bachelor's 
degree in psychology. 
The director found that the proffered position was not a specialty occupation because the job is not a social 
worker position; it is a psychiatric aide position. Citing to the Department of Labor's Occupational Outlook 
Handbook (Handbook), 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 is that of a social worker, and is not a psychiatric 
aide worker position. Counsel states further that the beneficiary performs her duties under the supervision of a 
licensed clinical social worker and, therefore, she does not require a State license. 
Upon review of the record, the petitioner has established that the proffered position is 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. 
WAC 03 100 50067 
Page 4 
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 HiraYBlaker COT. v. Sava, 7 12 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
A review of the Handbook, 2006-2007 edition, finds that a bachelor's degree in social work (BSW) is the most 
common minimum requirement to qualify for a job as a social worker, though majors in psychology, sociology, 
and related fields may qualify for some entry-level jobs. Further, all States and the District of Columbia have 
licensing, certification, or registration requirements regarding social work practice and the use of professional 
titles. 
Pursuant to the Business and Professions Code of California, Chapter 14. Social Workers, Arhcle 4. Clinical 
Social Workers $4996(b): 
It is unlawful for any person to engage in the practice of clinical social work unless at the time 
of so doing such person holds a valid, unexpired, and unrevoked license under this article. 
Pursuant to the Business and Professions Code of California, Chapter 14. Social Workers, Article 4. Clinical 
Social Workers $ 4996.9. Clinical Social Work and Psychotherapy Defined: 
The practice of clinical social work is defined as a service in which a special knowledge of social 
resources, human capabilities, and the part that unconscious motivation plays in determining 
behavior, is directed at helping people to achieve more adequate, satisfying, and productive social 
adjustments. The application of social work principles and methods includes, but is not restricted 
to, counseling and using applied psychotherapy of a nonmedical nature with individuals, families, 
or groups . . . [Emphasis added.] 
Counsel's statement on appeal that the beneficiary does not engage directly in the practice of clinical social 
work is not convincing. The full scope of the beneficiary's duties, including counsel's descriptions in his 
letter of reply to the request for evidence, fall within the definition of clinical social work in the California 
regulation submitted at appellate Exhibit E. Further, counsel's statement in his May 17, 2004 response to the 
director's request for evidence that the beneficiary "will not be counseling patients" conflicts with the duties 
described in the document entitled "Roster of Facility StafQJob Descriptions," namely that the beneficiary 
would counsel clients as needed. 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). 
Because the proposed duties provided by the petitioner plainly describe the beneficiary as counseling the 
petitioner's residents and indicate other activities within the California's regulatory definition of clinical 
social work, the proffered position entails the practice of clinical social work, which is a specialty occupation 
and requires licensure. 
WAC 03 100 50067 
Page 5 
The record contains a letter from a psychiatric social worker from the City of Angels Medical Center, which 
is a short-term acute care hospital with 180 beds. The writer states, in part: "I am writing to confirm the 
common practice of employing unlicensed Social Workers. Our organization employs such as practice. . . ." 
The writer does not address the relevant issue, which is licensure requirements for clinical social workers. 
The writer does not analyze the use of unlicensed social workers in the context of this petitioner's business, 
which is, as opposed to a short-term acute care hospital, a 24-bed healthcare facility for children with Down 
Syndrome. Furthermore, the writer's confirmation of the common practice of employing unlicensed social 
workers is not supported by any evidence that would establish her authority to speak to industry-wide hiring 
practices. Moreover, this information is not convincing evidence that the proffered position is a social worker 
exempt of the state licensing requirement in this case, based on the discrepancies discussed above. In view of 
the foregoing, the petitioner has not demonstrated that a baccalaureate or higher degree in a specific specialty is 
required for the proffered position. 
It is noteworthy that, at Appellate Exhibit E, counsel excised from his excerpt of section 4996 of the California 
regulations the provisions that prohibit exercise of clinical social work by unlicensed persons. 
The AAO notes that the submitted job posting fails to establish that the proffered position does not require 
state licensing. The job posting is from Child Protective Services, not a healthcare facility similar to the 
petitioner. Thus, the job posting is not probative. The AAO also notes that section 4996.14 of the California 
regulations submitted at Appellate Exhibit E expressly exclude from clinical social worker licensure 
requirements "persons employed in family or children services agencies." 
The AAO also notes that 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 
malung a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. tj 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 (Comrn. 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 AAO is never bound by a decision of a service center 
or district director. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd 248 F.3d 
1139 (5th Cir. 200 l), cert. denied, 122 S.Ct. 5 1 (200 1). 
The director also found that the beneficiary was not qualified to perform the duties of a specialty occupation 
because she does not hold the required State license. No evidence contained in the record demonstrates that the 
beneficiary holds the required State license to perform the duties of the specialty occupation - a clinical social 
worker. For tlus additional reason, the petition may not be approved. 
WAC 03 100 50067 
Page 6 
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. The petition is denied.