dismissed H-1B Case: Sports And Fitness

identifyingdata deletedto
preventclearlyunwarranted
invasionof personalprivacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
INRE:
EAC 05 17851391
Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER Date:
OCT 292007
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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
www.uscis.gov
EAC 05 17851391
Page 2
DISCUSSION: The director of the service center 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 tenn is and health club that seeks to employ the beneficiary as its director of education. The
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act) , 8 U.S.c.
§ 1101(a)(15)(H)(i)(b). The director denied the petition because the proffered position is not a specialty
occupation.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation ; (2) the
director's request for evidence (RFE); (3) the petit ioner's response to the director 's request; (4) the director 's
denial letter; and (5) the Form 1-290B , with a letter from the petitioner . The AAO reviewed the record in its
entirety before reaching its decision.
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its
burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary meets
the following statutory and regulatory requirements .
Section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1) , 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.
The term "specialty occupation" is further defined at 8 C .F.R. § 214.2(h)(4)(ii) as:
An occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to , architecture,
engineering, mathematics , physical sciences , social sciences, medicine and health, education ,
business specialties, accounting, law, theology, and the arts, and which requires the
attainment of a bachelor's degree or higher in a 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:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum
requirement for entry into the particular position;
EAC OS 178 S1391
Page 3
(2) The degree requirement is common to the industry in parallel positrons among
similar organizations or, in the alternative , an employer may show that its particular
posit ion 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) consistently interprets the term "degree" in the above criteria to
mean not just any baccalaureate or higher degree , but one in a specific specialty that is directly related to the
proffered position.
To determine whether a particular job qualifies as a specialty occupation , CIS does not simply rely on a
position 's title. The specific duties of the proffered position , combined with the nature of the petitioning
entity's business operations , are factors to be considered. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 F.
3d 384 (Sth Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards , but whether the position actually requ ires 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 Act.
The petitioner seeks the beneficiary's services as its director of education . Evidence of the beneficiary's
duties includes: the petitioner's May 23, 200S letter in support of the petition and the petitioner's October 12,
200S response to the director's RFE. ill the May 23, 200Sletter submitted by the petitioner's former counsel , the
petitioner's CEO described the nature of the petitioning entity and the proposed duties as follows:
[The petitioner] provides tennis instruction and coaching to children , adults and competitive
players. [The petitioner] uses the most advanced teaching techniques including video evaluation
lind state-of-the-art fitness equipment. [The petitioner] offers a variety of programs for all ages and
tennis levels including junior programs , [after-school] programs, adult programs and summer
program[s] . [The petitioner] also offers [professional-level coaching] to serious students who wish
to compete in U.S. Tennis Association (USTA) competition and leagues.
[The beneficiary] will be responsible for planning and coordinating physical education and tennis
programs. He will plan, develop and implement weight training, nutritional and exercise programs
for students. He will direct the preparation of publicity [to] promote athletic events, supervise and
coordinate the activities of our coaching [staff]. [The beneficiary] will prepare budgets and
authorize department expenditures, as well as plan and schedule sports events.
"
EAC 05 17851391
Page 4
In a letter dated October 12, 2005, submitted by the petitioner's current counsel in response to the petitioner 's
RFE, the petitioner's CEO described the natureof the petitioning entity, in part, as follows:
[The petitioner] will be an exciting, luxurious, and modem sports and fitness facility that will
dominate the industry in the Monmouth County, New Jersey metro area . The club will offer a
[state-of-the-art],high-end facility to tennis, fitness, and league sports enthusiasts of all ages and
skill levels.
[The petitioner] anticipates opening its doors during the first quarter of 2006, but will begin
actively recruiting and signing up members in the 3rd and 4th quarters of 2005.1
As stated by the petitioner's CEO in the October 12,2005 letter, the proposed duties are as follows:
• Planning and scheduling: setting goals , objectives and de veloping a detailed method of
achieving them in a specified time period including planning and coordinating physical
education and tennis programs as well as planning, developing , implementing and scheduling
weight training, nutritional and exercise programs (30 % of time);
• Directing the preparation of publicity for the promotion of athletic events; orgamzmg
tournaments, social, and recreational events ; creating and promoting contests and challenges to
keep the members motivated and exc ited; and overseeing marketing to members (25% of the
time);
• Hiring, lead ing, motivating, delegating, directing, evaluating, disciplining, and firing
employees; developing and implementing a code of ethics, dress code , and teaching style for all
employees; organizing the employees ' efforts to reach the objectives successfully and creating
an efficient and harmonious atmosphere; supervising and coordinating the activities of the
coaching staff (25% of the time); and
• Controlling, coordinating, and implementing budgeting and auditing activities on a quarterly
and annual basis; reporting to executives (20% of the time).
The director found that the proposed director of education duties do not require a bachelor's degree in a
specific specialty. The director also found that the petitioner had not established that at the time of filing the
petition, or at the present time, it had a specialty occupation position available for the beneficiary. The
director concluded that the petitioner failed to establish any of the criteria found at 8 C .F.R.
§ 214.2(h)(4)(iii)(A).
I An October 9, 2007 search of the petitioner 's website at http: //www.matchpointclub.comlfinds the
petitioner's targeted opening date as 2008.
EAC 05 178 51391
Page 5
On appeal, the petitioner's CEO states, in part, that the proffered position meets three criteria of 8 C.F.R.
§ 214.2(h)(4)(iii)(A) . She states that a baccalaureate or higher degree or its equ ivalent is normally the
minimum requirement for entry into the particular position , the degree requirement is common to the industry
in parallel posit ions among similar organ izations, and 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. She states further that the petitioner's RFE detailed professional duties to take
place prior to the petitioner 's opening, such as assisting the petitioner 's executives in selecting proper fitness
equipment and technology , developing and scheduling fitness programs and activities, and hiring personnel.
Counsel submits the following previously submitted supporting documentation: two opinion letters; two
approvals for the beneficiary in the same position for different petitioners; job postings; and the petitioner's
business plan, lease, and "Account Quick Report." Counsel also subm its a proposal for fitness equipment and
a letter of credit.
Preliminarily, the AAO observes that in its response to the director 's RFE, the petitioner changed the nature
of the position from that of a director of education of a tennis and health club already conducting business to
that of a director of education of a tennis and health club under construction.
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the
benefit sought has been established. 8 C.F .R. § 103.2(b)(8). When responding to a request for evidence, a
petitioner cannot offer a new positionto the beneficiary , or materially change a position's title , its level of
authority within the organizational hierarchy , or its associated job responsibilities. The petitioner must
establish that the position offered to the beneficiary when the petit ion was filed merits classification as a
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). If
significant changes are made to the initial request for approval, the petitioner must file a new petition rather
than seek approval of a petition that is not supported by the facts in the record . The information provided by
the petitioner in its response to the director's request for further evidence did not clarify or provide more
specificity to the original duties of the position, but rather changed the nature of the position from that of a
director of education of a tennis and health club already conducting business to that of a director of education
of a tennis and health club still under construction. Therefore, the analysis of this criterion will be based on
the job description submitted with the initial petition .
Upon review of the record , the petitioner has established none of the four criteria outlined m
8 c.P .R. § 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. §§ 214.2(h)(4)(iii)(A)(J) 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 (DOL)
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 suchfirms "routinely employ and recruit only degreed individuals."
EAC 05 178 51391
Page 6
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 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. Although a review of the Fitness Workers occupational category in the Handbook, 2006­
07 edition, fmds that a bachelor's degree, and in some cases a master's degree, in exercise science, physical
education, kinesiology, or a related area, along with experience, is usually required to advance to management
positions in a health club or fitness center, the AAO does not find that the proffered position is a specialty
occupation. The petitioner has not demonstrated that the beneficiary performs the director of education position
described in its May 23, 2005 letter, with duties that entail implementing weight training and nutritional and
exercise programs for students, promoting athletic events, and supervising and coordinating the petitioner's
coaching staff. Further, although the petitioner's business plan claims that the petitioner anticipates recruiting and
signing up members in the 3 rd and 4 th quarters of 2005, opening its doors during the first quarter of 2006, and
raising $4 million to begin operations, the record contains no evidence in support of these assertions. Of further
note, although information on the petition reflects that the petitioner was established in 2005, has 10projected
employees and a projected gross annual income of $1 million, the petitioner provides no evidence in support of
these claims, such as federal income tax returns and quarterly wage reports. 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972».
Accordingly, the petitioner has not established the proffered position as a specialty occupation under 8 C.F.R.
§ 214.2(h)(iii)(A)(1).
Regarding parallel positions in the petitioner's industry, the record contains opinions from two individuals in the
health fitness industry. One letter is from the chairman and owner of a business that designs, constructs, and
renovates indoor sports and other facilities. The second letter is from an independent, part-time consultant for
fitness facilities, who provides no evidence of having expertise in the field of health fitness. Both writers assert
that the proffered position is a professional position and/or requires a related bachelor's degree. The record,
however, does not indicate that the writers have adequate knowledge ofthis matter. The opinions do not include a
discussion of the proposed duties and/or the actual work that the beneficiary would perform within the context of
this particular petitioner's business. The writers do not demonstrate knowledge of the petitioner's particular
business operations. They do not relate any personal observations of those operations or of the work that the
beneficiary would perform. Their opinions do not relate their conclusions to specific, concrete aspects of this
petitioner's business operation to demonstrate a sound factual basis for their conclusions about the educational
requirements for the particular position at issue. 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, 19 I&N Dec. 791 (Comm. 1988). As the opinions of the writers are not based on a factual
foundation, the AAO does not fmd them probative in this matter.
EAC 05 17851391
Page 7
The record also contains Internet job postings for health and fitness directors. The listings rely on duties unlike the
duties listed by the petitioner. The record does not demonstrate that the proposed duties of the proffered position
are as complex as the duties described for the ad vertised positions, such as leading a fitness staff and personal
trainers, and monitoring the ongoing performance of the club's fitness programs. The record also does not include
sufficient evidence from individuals , firms, or professional associations regarding an industry standard .
Accordingly the petitioner has not established that the degree requirement is common to the industry in parallel
positions among similar organizations.
On appeal, the petitioner states that CIS has already determined that the proffered position is a specialty
occupation since CIS has approved other, similar petitions in the past. This record of proceeding does not,
however, contain all of the supporting evidence submitted to CIS in the prior cases. In the absence of all of
the corroborating evidence contained in other records of proceeding, the information submitted by counsel is
not sufficient to enable the AAO to determine whether the positions offered in the prior cases were 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. § 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the
prior cases were similar to the proffered position or were approved in error , no such determination may be
made without review of the original records in their entirety. If the prior petitions were approved based on
evidence that was substantially similar to the evidence contained in this record of proceeding, however, the
approval of the prior petitions 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).)
In the alternative, the petitioner may show that the proffered position is so complex or unique that only an
individual with a degree can perform the work associated with the position. As observed above, the petitioner
has not provided evidence that the proffered position incorporates the complex duties of a director of
education of a tennis and health club who oversees fitness staff, programs, and club members, thus requiring a
minimum of a bachelor 's degree in physical education . The petitioner has not identified any unique duties that
are specifically pertinent to the petitioner's business operations as described at the time of filing that would
require knowledge associated with a bachelor's degree in a specific discipline . The petitioner has failed to
establish the proffered position as a specialty occupation under either prong of the criterion at 8 C.F .R.
§ 214.2(h)(4)(iii)(A)(2).
The AAO now turns to the criterion at 8 C .F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position. As counsel does not address this issue on appeal , it will not be
discussed further. The evidence of record does not establish this criterion.
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EAC 05 17851391
Page 8
Finally, the AAO turns to the criterion at 8 C.F .R. § 2l4.2(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
attainmentof a baccalaureate or higher degree.
The petitioner's CEO states, on appeal, that the beneficiary 's duties as its director of education are so
specialized and complex as to require a related bachelor's degree. As indicated in the discussion above , the
record of proceeding lacks evidence of specific duties in relation to the petitioner's specific business operations
as described at the time of filing that would establish such specializationand complexity. 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 in a specific specialty. Therefore, the
evidence does not establish that the proffered position is a specialty occupation under 8 C .F.R.
§ 214.2(h)(4)(iii)(A)(4) .
As related in the discuss ion above, the petitioner has failed to establish that the proffered position is a
specialty occupation.
Although the director did not make a specific determination regarding the eligibility of the beneficiary to
perform H-IB level services , the AAO observes beyond the decision of the director, that the record contains
only copies of the beneficiary's foreign degree , a foreign certification , and a credentials evaluation. The
record does not contain a copy of the beneficiary's transcripts or other evidence demonstrating the
beneficiary's qualifications as required by 8 C.F.R. § 214 .2(h)(4)(iii)(C).2 An application or petition that fails
to comply with the technical requirements of the law may be denied by the AAO even if the Service Center
does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United
States, 229 F. Supp. 2d 1025 , 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir . 2003); see also Dor v. INS,
891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). For this
additional reason, the petition will not be approved.
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
Here, that burden has not been met.
ORDER: The appeal is dismissed. The petition is denied.
2 It is also noted that the beneficiary 's alma mater, Instituto Superior de Educacion Fisi~a No.1 _
•••••• does not appear on the Electronic Database for Global Education (EDGE) website at
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