dismissed H-1B Case: Social Work

identifying data deleted to 
prevent clearly u~wmtd 
invasion of ps~d M-Y 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, D.C. 20529 
U. S. Citizenship 
and Immigration 
APR 2 6 2006 
FILE: WAC 04 098 51291 Oflice: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(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 
WAC 04 098 51291 
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 long-term care facility that seeks to employ the beneficiary as a social worker and to 
classify her as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(I)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101 (a)(lS)(H)(I)(b). 
The director denied the petition on the basis that the proposed position is not a specialty occupation and on 
the basis that the petitioner failed to establish that the beneficiary is qualified to perform the duties of a 
specialty occupation. On appeal, the petitioner submits a brief and additional evidence. 
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. $ 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. 
$2 14.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific field of study 
that is directly related to the proposed position. 
The record of proceeding before the AAO contains, in part: (1) Form 1-129 with supporting 
documentation; (2) the director's request for additional evidence (WE); (3) the petitioner's response to 
the WE; (4) the director's denial letter; and (5) Form I-290B with accompanying brief and additional 
documents. The AAO reviewed the record in its entirety before issuing its decision. 
WAC 03 167 51946 
Page 3 
The petitioner seeks the beneficiary's services as a social worker. Evidence of the beneficiary's duties 
includes the documentation submitted with the 1-129, the response to the WE, and the materials 
submitted on appeal. According to this evidence, the beneficiary's duties would include: 
evaluating and documenting residents' psychological needs on a regular basis according to 
current company guidelines; 
working in close coordination with physicians and other health care personnel in patient 
evaluation and treatment to further their understanding of significant social and emotional factors 
underlying the patient's health problems; 
helping patients and family through individual or group conferences to understand, accept and 
follow medical recommendations; 
giving general, non-medical progress reports to physicians, community agencies, or family 
members; 
documenting any psychological behavior of patient and referring to attending physician for 
further evaluation; and 
providing services planned to restore the patient to optimum social and health adjustment within 
the patient's capacity. 
In the response to the WE, the petitioner submitted a letter stating that it required its social workers to 
have an associate's degree in human services or a high school diploma or its equivalent with two years 
experience in human services or a health-related field. On appeal, the petitioner asserts that it requires its 
social workers to possess bachelor's degrees in their field. 
The director denied the petition because it found that the proposed duties resembled the duties of a 
psychiatric aide more than those of a social worker and therefore did not meet the statutory definition of a 
specialty occupation. The director also denied the petition based on the petitioner's failure to demonstrate 
that the beneficiary was qualified to perform the duties of the proposed position. The director found that 
California requires social workers to possess appropriate interim, temporary, or permanent licensure and 
that the beneficiary did not possess that license. 
On appeal, the petitioner asserts that the position is a specialty occupation based on the specialized nature 
of the position, the complexity of the proposed duties, and because it is common to the industry to require 
a bachelor's degree in a specialty for parallel positions in similar organizations. The petitioner asserts 
that the beneficiary qualifies to perform the duties of a specialty occupation because she holds a 
bachelor's degree in psychology, she participated in a workshop for social service certification, and 
because the state of California does not require social workers in facilities similar to the petitioner's to 
hold licenses. 
The petitioner need only satisfy one of the criterion at 8 C.F.R. 214.2@)(4)(iii)(A) to show that a position 
is a specialty occupation. Upon review of the record, the AAO concludes that the petitioner has failed to 
establish that the proposed position meets any of the four criteria outlined in 8 C.F.R. 
5 214.2@)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
In the response to the WE, counsel asserted that CIS has already determined that the proposed position is 
a specialty occupation since CIS approved this beneficiary's H-1B 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 
WAC 04 098 5 1291 
Page 4 
documents submitted 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. 
In addition, each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 
tj 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. § 1032)(16)(ii). Although the AAO may attempt to 
hypothesize as to whether the prior case 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. Citizenship and Immigration Services (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). 
To determine whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether 
the position actually requires the theoretical and practical application of a body of highly specialized 
knowledge and the attainment of a bachelor's degree in a specific field of study as the minimum for entry 
into the occupation as required by the Act. 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook for information 
about the duties and educational requirements of particular occupations. After careful review of the 
proposed duties and the Handbook, the AAO finds that the proposed duties most closely resemble those 
performed by social and human service assistants, and not social workers. The proposed duties reflect 
those of social and human service assistants who, according to the Handbook, under varying degrees of 
responsibilities, monitor and keep case records on clients, assist clients in need of counseling or crisis 
intervention, and support the client's participation in a treatment plan, such as individual or group 
counseling or occupational therapy. Although the petitioner describes some of the duties of a clinical 
social worker, a specialty occupation that requires licensing, the petitioner's own assertions establish that 
the position only requires an associate's degree or high school diploma. The petitioner's earlier assertion 
that it requires an associate's degree or high school diploma for the position is directly contradicted by its 
assertion on appeal that it requires a bachelor's degree in a field related to social work. 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). On appeal, the petitioner makes no attempt to explain or reconcile its earlier assertion 
regarding its own degree requirements for the proposed position. Therefore, the AAO will consider the 
petitioner's earlier assertion in its determination about the nature of the proposed duties. 
To determine whether the proposed position qualifies as a specialty occupation under the criterion at 
8 C.F.R. 214.2(h)(4)(iii)(A)(I) - a bachelor's or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position - the AAO turns to the 2006-07 Handbook's discussion 
of the educational requirements for social and human services assistants. The Handbook does not indicate 
that employers normally impose a bachelor's degree requirement on any of these job applicants. Instead, 
WAC 03 167 51946 
Page 5 
some employers may require their social and human services assistants to have bachelor's degrees and 
some only require two-year associate's degrees. In addition, individuals with experience may be hired 
based on a combination of formal education, training andlor experience. The Handbook also indicates 
that social and human services assistants possess bachelor's degrees in a variety of fields, not just social 
work or related fields. As individuals may enter these occupations with less than a bachelor's degree, or 
with degrees in a variety of fields, the petitioner fails to establish that the proposed position qualifies as a 
specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I). Further, the AAO finds that, due to the 
petitioner's associate degree requirement for the proposed position, the position does not qualify as a 
specialty occupation under the first criterion. The petitioner asserted that the proposed position only 
required an associate's degree or high school diploma. Thus, the proposed position does not qualify as a 
specialty occupation under this criterion. 
The AAO turns next to the first alternative prong of the second criterion at 8 C.F.R. 
fj 214.2(h)(4)(iii)(A)(2) - a specific degree requirement is common to the industry in parallel positions 
among similar organizations. To determine if a position is a specialty occupation under this criterion, CIS 
generally considers whether or not letters or affidavits from companies or individuals in the industry attest 
that such companies "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 
F. Supp. 2d 115 1, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 
(S.D.N.Y. 1989)). The Handbook indicates that there is no industry-wide requirement for a 
social work-related bachelor's degree for social and human services assistant positions. The petitioner did 
not submit a letter from a national association, survey results, or other such documents to establish an 
industry-wide standard. The one letter submitted on appeal is not sufficient to establish an industry-wide 
standard for parallel positions in facilities similar to the petitioner. The letter does not describe the duties 
with sufficient particularity to determine if they are similar to the proposed position. In addition, the letter 
states that the employer prefers a bachelor's degree in a related field but does not require it. Therefore, the 
proposed position does not qualify as a specialty occupation under the first alternative prong at 8 C.F.R. 
8 2 14.2@)(4)(iii)(A)(2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires 
at least a bachelor's degree or its equivalent, in a specific field of study, for the position. To determine a 
petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including the names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
There is no evidence in the record to suggest that the proposed position qualifies for classification as a 
specialty occupation under this criterion. In fact, the only evidence submitted to support this assertion is a 
statement from the petitioner that it does not require a bachelor's degree in a specialty but an associate's 
degree or high school diploma. As such, the position does not qualify as a specialty occupation under 
8 C.F.R. 8 2 14.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criteria related to the complexity, uniqueness, or specialized nature of the 
proposed position. A petitioner satisfies the second alternative prong of the second criterion at 8 C.F.R. 
8 214.2(h)(4)(iii)(A)(2) if it establishes that a particular position is so complex or unique that it can be 
performed only by an individual with a bachelor's degree in a specific field of study. The criterion at 
8 C.F.R. § 2 14.2(h)(4)(iii)(A)(4) requires a petitioner to establish that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a bachelor's or higher degree in a specific field of study. On appeal, the petitioner asserts that 
the position is so specialized and the duties so complex that a bachelor's degree in social work or a related 
field is necessary for the job. This statement, however, contradicts the petitioner's earlier statement that it 
WAC 04 098 5 129 1 
Page 6 
required an associate's degree or high school diploma for the position. Since the petitioner did not 
attempt to explain or reconcile this inconsistency, the AAO finds that the proposed position is not a 
specialty occupation based on its complexity or uniqueness or the specialized nature of its duties under 
8 C.F.R. 8 214.2(h)(4)(iii)(A)(2) and (4). 
The director also found that the beneficiary would not be qualified to perform the duties of the proposed 
position if the job were a specialty occupation. As the AAO is dismissing the appeal because the job is 
not a specialty occupation, it will not discuss the beneficiary's qualifications. 
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 failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.