dismissed H-1B Case: Steel Fabrication

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U.S.Department of Homeland Security
20 Mass; Ave. N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
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FILE:
INRE:
WAC 05 096 50767
Petitioner:
Beneficiary:
Office: CALIFORNIA SERVCE CENTER Date: DEC 04 20G6
PETITION: Petition for a NonimmigrantWorker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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
WAC 05 096 50767
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 full service structural and miscellaneous steel fabricator and erector company. In order to
employ the beneficiary as a drafter, the petitioner endeavors to classify the beneficiary as a nonimmigrant
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Imm igration and Nationality Act
(the Act), 8 U.S.c. § lI01(a)(15)(H)(i)(b).
The director denied the petition on the· basis that the evidence of record does not satisfy any specialty­
occupation qualifying criterion of the regulations at 8 C.F.R. § 214.2(h)(4)(iii)(A) .
On appeal, the petitioner asserts that, contrary to the director's decision, the proffered position qualifies as a
specialty occupation under three of the criteria of 8 C.F.R. § 214.2(h)(4)(iii)(A) . The petitioner contends that:
(1) the proffered position is one that normally requires a baccalaureate or higher degree; (2) the position is so
complex that it can be performed only by an individual with a degree; and (3) the nature of the specific duties is
so specialized and complex that the knowledge required to perform them is usually associated with the attainment
of a baccalaureate or higher degree.
The AAO has determined that the director's decision to deny the petition was correct. The AAO bases its
decision upon its consideration of the entire record of proceeding before it; which includes: (1) the
petitioner 's Form 1-129 and the supporting documentation filed with it ; (2) the director 's request for
additional evidence (RFE) ; (3) the materials submitted in response to the RFE ; (4) the director 's denial letter ;
and (5) the Form I-290B and the petitioner 's brief in support of the appeal.
In its June 1, 2005 'letter replying to the RFE, the petitioner describes itself as "a full-service structural and
miscellaneous steel fabricator and erector company . . . and a licensed . . . fabricator specializing in
miscellaneous metal and structural steel" that provides "professional engineered structures and structural
components to schedule and quality service customers in multiple market segments requiring [a] high volume
of fabricated components and fabrication of miscellaneous metal structures."
Form 1-129, Supplement H describes the proposed duties as "preparation of erection drawing & shop draw ing
by means of computer aided drafting (CAD) , manual drafting, & estimating ." The petitioner 's June 2005
letter includes the following information about the proffered position:
The [petitioner 's] drafting and engineering department knows how critical the timely delivery
of detailed drawings for clients ' approval. Efficiency and CAD productivity is one of our
goals to our internal administration of the projects we undertake [sic].
To ensure timely delivery of clear, concise and accurate detail drawings, [the beneficiary's]
tasks as a Drafter , will be required to:
WAC 05 096 50767
Page 3
• Read and interpret architectural and structural design drawings for the
preparation of the erection and shop drawings
• Layout anchor bolt 'setting plan and miscellaneous embed [sic] plates.
• Detail columns and beams connection.
• Prepare estimate, bills of materials, and miscellaneous detail drawings e.g. stair,
handrail, guardrail, ladder, fence and gate utilizing the special 3D steel detailing
software so that [the petitioner] operates as a more efficient and profitable
enterprise.
The above duties of the position are extremely complex, requiring the technical application of
architectural and structural disciplines.
A drafter must posse's [sic] knowledge of American Institute of Steel Construction (AISC),
Structural Welding Code-Steel and Uniform Building Code (UBC) requirements. Skills in
geometric problem solving and its practical application are also necessary for higher quality
detail drawings.
An experienced drafter would result to a shorter time frame for the company to meet the
customer construction schedule and save a lot of time that makes detailing and fabrication
more efficient and reliable. Given above mentioned necessary skills for a Drafter, [the
petitioner] requires a minimum of a bachelor's degree in structural steel detailing for the
Drafter position as do other firms in the industry.
On appeal, the petitioner identifies the following as "the job duties of the Drafter position":
1. Read and interpret architectural and structural design drawings for the preparation of
shop drawings (40%)[;]
This will include the following activities[:] consulting and conferring with engineering,
production to establish and evaluate design concepts for manufactured steel; modify and
refine design concepts for manufactured steel; modify and refine designs to conform with
customer specifications or changes in the design[.]
2. Lay-out anchor-bolt setting plan and miscellaneous embedded plates, detail column and
beams connections (20%)[;]
The above translate to duties relating to direction and coordination of fabrication of models
and the drafting of working drawings and specification sheet[s].
3. Prepare estimate, bills of materials (10%)[;]
4. Prepare detail drawings using a specialized 3D CAD steel detailing software (30%)[.]
WAC 05 096 50767
Page 4
On appeal, the petitioner asserts that the above listed duties "have essential elements of the duties of a
Designer, which is an H-IB caliber position that requires a bachelor's degree as minimum qualification
(OOH [Department of Labor's Occupational Outlook Handbook (Handbook)] 2004-2005)," and that they
"indicates [sic] complexity that is beyond what is normally encountered in usual drafter position[s] that
knowledge required to perform said duties is associated with the attainment of baccalaureate or higher
degree."
Section 101(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b), provides a nonimmigrant
classification for aliens who are coming temporarily to the United States to perform services in 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.
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an
occupation that requires the theoretical and practical application of a body of highly specialized knowledge
that is conveyed by at least a baccalaureate or higher degree in a specific specialty.
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(ii) states that a specialty
occupation means an occupation
which [1] 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 [2] 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;
(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;
WAC 05 096 50767
Page 5
(3) The employer normally requires a degree or its equivalentfor 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) has consistently interpreted the term "degree" in the criteria at 8
C.F.R. § 2l4.2(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. Applying this standard, CIS regularly approves
H-lB petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public
accountants, college professors, and other such professions. These occupations all require a baccalaureate
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of
professions that Congress contemplated when it created the H-IB visa category.
The petitioner has not satisfied the criterion at 8 C.F.R. § 2l4.2(h)(4)(iii)(A)(l), which assigns specialty
occupation status to a position for which the normal minimum entry requirement is a baccalaureate or higher
degree, or the equivalent, in a specific specialty closely related to the position's duties.
As the AAO recognizes the Handbook as an authoritativesource on the duties and educational requirements of a
wide variety of occupations, it consulted the 2006-2007 edition for information relevant to the proffered
position and its duties. 1 The AAO finds that, to the extent that they are described in the record, the position
and its duties comprise an architectural drafter position with additional duties of an administrative nature,
namely, preparation of estimates and bills of materials. The Handbook's section on drafters includes this
discussion of their work:
The Handbook includesthese comments about the drafter occupation:
Drafters prepare technical drawings and plans used by production and construction workers .
to build everything from manufactured products such as toys, toasters, industrial machinery,
and spacecraft to structures such as houses, office 'buildings, and oil and gas pipelines.
Drafters' drawings provide visual guidelines; show the technical details of the products and
structures; and specify dimensions, materials, and procedures. Drafters fill in technical
details using drawings, rough sketches, specifications, codes, and calculations previously
made by engineers, surveyors, architects, or scientists. For example, drafters use their
knowledge of standardized building techniques to draw in the details of a structure. Some
use their knowledge of engineering and manufacturing theory and standards to draw the parts
of a .machine to determine design elements, such as the numbers and kinds of fasteners
needed to assemble the machine. Drafters use technical handbooks, tables, calculators, and
computers to complete their work.
The Handbook, which is available in printed form, may also be accessed on the Internet, at
www.stats.bls.gov/oco/. The AAO's references are to the 2006-2007 print edition of the Handbook.
WAC 05 096 50767
Page 6
Traditionally, drafters sat at drawing boards and used pencils, pens, compasses, protractors,
triangles, and other drafting devices to prepare a drawing manually. Most drafters now use
CADD systems to prepare drawings. Consequently, some drafters may be referred to as
CADD operators. CADD systems employ computers to create and store drawings
electronically that can then be viewed, printed, or programmed directly into automated
manufacturing systems. These systems also permit drafters to quickly prepare variations of a
design. Although drafters use CADD extensively, it is only a tool. Persons who produce
technical drawings with CADD still function as drafters and need the knowledge of
traditional drafters, in addition to CADD skills. Despite the nearly universal use of CADD
systems, manual drafting and sketching still are used in certain applications.
Drafting work has many specialties, and titles may denote a particular discipline of design or
drafting.
Architectural drafters draw architectural and structural features of buildings and other
structures. These workers may specialize in a type of structure, such as residential or
commercial, or in a kind of material used, such as reinforced concrete, masonry, steel, or
timber.
As evident in the following excerpts on qualifications and opportunities, the Handbook indicates that a
bachelor's degree in a specific specialty is not normally a minimum requirement for entry into the drafter
occupation:
Employers prefer applicants who have completed postsecondary school training in drafting,
training that is offered by technical institutes, community colleges, and some 4-year colleges
and universities. Employers are most interested in applicants with well-developed drafting
and mechanical drawing skills; knowledge of drafting standards, mathematics, science; and
engineering technology; and a solid background in CADD techniques. In addition,
communication and problem-solving skills are important.
Opportunities should be best for individuals with at least 2 years of postsecondary training in
a drafting program that provides strong technical skills, as well as considerable experience
with CADD systems. CADD has increased the complexity of drafting applications while
enhancing the productivity of drafters. It also has enhanced the nature of drafting by creating
more possibilities for design and drafting. As technology continues to advance, employers
will look for drafters with a strong background in fundamental drafting principles, a high
level of technical sophistication, and the ability to apply their knowledge to a broader range
of responsibilities.
WAC 05 096 50767
Page 7
The record of proceeding contains no evidence to support a finding that the additional administrative duties,
alone or in combination with the drafting duties, elevate the proffered position to one that normally requires at
least a bachelor's degree, or the equivalent, in a specific specialty. The petitioner's contrary assertion is not
supported by the evidence, and therefore, has no merit. The AAO also finds that the evidence of record does
not support the petitioner's argument, first asserted on appeal, that the proposed duties "have essential
elements of the duties of a Designer, which is an H-1B caliber position that requires a bachelor's degree as
minimum qualification." The petitioner's assertion without supporting documentary evidence is not sufficient
for the purpose of meeting the burden of proof in these proceedings. Going on record without supporting
documentary evidence is not sufficient for purposes 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)).
Further, on appeal, or when responding to a request for evidence, a petitioner cannot offer a new position to
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 petition was filed merits recognition as a specialty occupation. See Matter ofMichelin
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a
petition in an effort to make a deficient petition conform to CIS requirements. See Matter ofIzummi, 22 I&N
Dec. 169, 176 (Assoc. Comm. 1998). To have significant changes to the content of a petition considered­
such as converting a drafter's position to one that involves a bachelor's degree level of designing duties - the
petitioner must file a new petition, with fee and an appropriate, certified Labor Condition Application, that
incorporates those changes.
')
For the reasons discussed above, the petitioner has not satisfied the criterion of 8 C.F.R.
§ 214.2(h)(4)(iii)(A)(l).
The petitioner has not satisfied either ofthe alternative prongs of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The first alternative prong assigns specialty occupation status to a proffered position with a requirement for at
least a bachelor's degree, in a specific specialty, that is common to the petitioner's industry in positions that
are both (l) parallel to the proffered position and (2) located in organizations that are similar to the petitioner.
In determining whether there is such a common degree requirement, factors often considered by CIS 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 Shand, 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)).
As discussed above, the petitioner has not established that its proffered position is one for which the Handbook
reports an industry-wide requirement for a bachelor's degree in a specific specialty. Also, there are no
submissions from professional associations, individuals, or firms in the petitioner's industry.
WAC 05 096 50767
Page 8
The evidence of record does not qualify the proffered position under the second alternative prong of 8 C.F.R.
§ 214.2 (h)(4)(iii)(A)(2) , which provides a petitioner the opportunity to show that its particular position is so
complex or unique that it can be performed only by an individual with at least a bachelor's degree in a
specific specialty. Here the evidence of record fails to establish that the proffered position is unique from or
more complex than positions which are essentially those of drafters who also prepare estimates and bills of
material ; and neither the Handbook nor any evidence of record establishes that such positions can be
performed only by persons with at least a bachelor's degree, or the equivalent, in a specific specialty. The
evidence of record does not substantiatethe petitioner's assertion that the "position is so complex in itself,
that duties associated with it .can be performed only by an individual with a degree in engineering or
architecture. "
The criterion at 8 C.F .R. § 214.2(h)(4)(iii)(A)(3) is not a factor, as the petitioner has not presented evidence
that the proffered position is one for which the employer normally requires at least a baccalaureate degree or its
equivalent in a specific specialty.
Finally, the evidence does not satisfy the criterion at 8 C .F.R. § 214.2(h)(iii)(A)( 4) for positions with specific
duties so specialized and complex that their performance requires knowledge that is usually associated with the
attainment of a baccalaureate or higher degree in a specific specialty. The AAO has considered but discounts the
petitioner's assertion on appeal that the proffered position "is so complex in itself , that duties associated with it
can be performed only by an individual with a degree in engineering or architecture." The petitioner asserts:
The [proffered] position entails analysis of product and design requirements, communicating
with other professionals such as Architects and Engineers and be able to comprehend and
discuss technical aspects of design, providing documentation and detailed
drawings/specifications to be used in production.
The record does not establish that such activities are other than incidental to the drafter's duties or that they
require an educational level higher than normally associated with drafters, which the Handbook indicates to
be less than a bachelor 's degree in a specific specialty .
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any
criterion of8 C.F.R. § 214.2(h)(4)(iii)(A) , the director's decision shall not be disturbed .
Beyond the decision of the director, the AAO notes that the record of proceeding lacks an official transcript of
coursework and an evaluation of the u.s. equivalency of that coursework so as to establish the beneficiary 's
qualification to serve in a specialty occupation in accordance with 8 C .F.R. § 214.2(h)(4)(iii)(C) and (D) .
For this reason also, the petition must be denied.
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 . Accordingly, the appeal will be dismissed .
ORDER: The appeal is dismissed. The petition is denied.