dismissed H-1B Case: Structural Engineering

1, 
i 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of ~arnelhd Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 ,, 
. \ 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 245 50292 Office: CALIFORNIA SERVICE CENTER Date: AUG 0 2 2006 
\ 
IN RE: Petitioner: -7% 
Beneficiary: 
PETITION: Petition for a lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (ax1 S)(H)(i)(b) 
I 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
--. 
;~hs 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. 
1 
WAC 04 245 50292 
Page 2 
DISCUSSION: The director of the California Seniice Center denied the nonirnmigrant 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 states that it is a structural engineering company, was established in 2002, has 2 
employees, and gross annual income of $130,000. It seeks to employ the beneficiary as a part-time 
"Junior Engineer" pursuant to section 1 0 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). The director denied the petition based on his determination that 
the proffered position was not a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's denial letter; and (3) Form I-290B, and an appeal brief. 
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)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines the term 
"specialty occupation" as one 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. 5 214.2(h)(4)(ii) as: 
An occupation which requires theoretical and 
 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. &j 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 
WAC 04 245 50292 
Page 3 
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 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 (5'h Cir. 2000). The critical element is not the title of the position nor an 
employer's sel,f-imposed standards, but whether the position actually requires 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 states that it is seeking the beneficiary's services as a "junior engineer." 
At the time of filing, as in the appeal, the petitioner stated that the duties of the proffered position would 
require the beneficiary (under supervision) to perform entry-level engineering and complex technical 
work. The petitioner specified the job duties to be performed according to the following percentages: 
Measure and obtain design data for projects, compute and check cost estimates, and 
attend pre-construction and progress meetings; (1 5%) 
Study and fully understand written specifications, contract drawings and shop drawings 
in order to access work being performed; (5%) 
Calculate and review areas, numbers and terms specified in contract to ensure limits are 
met; (5%) 
Audit and approve paperwork necessary for subcontractor payments and correctly assigns 
a value to additional items not in contract; (10%) 
- 
 Oversee and inspect construction and maintenance work on buildings which includes 
utilities, equipment and controls; (1 0%) 
WAC 04 245 50292 
Page 4 
Undertake field inspections to examine the workmanship and quality of materials used on 
construction projects to assure conformance to contract specifications and standard 
engineering applications; (1 0%) 
Prepare written correspondence for supervisory approval; (5%) 
Write progress reports and keep accurate daily records of work performed, hours worked, 
and transactions relating to construction project status; (5%) 
Recommend to supervisor the need for additional work and for modification to project 
based upon discussion with subcontractors; (10%) 
Do routine drafting and tracing of structures, buildings and facilities; (10%) and 
Prepare engineering sketches and drawings with computer-aided drafting (CAD) and 
engineering designs by soft desk tools (15%) 
The petitioner asserted that the position requires a bachelor's degree in engineering. 
The director found that the proffered position was not a specialty occupation because the duties are not so 
specialized and complex as to require a bachelor's degree in a specific field of study. Citing to the 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), the director found that the 
duties of the position were similar to those of a construction manager, a position which does not require a 
baccalaureate degree or its equivalent in a specific specialty. The director found Wher that the petitioner 
failed to establish any of the criteria at 8 C.F.R. 8 214.2(h)(4)(iii)(A). 
Counsel asserts that a civiVstructura1 engineer position requires a bachelor's degree and points to 
Dictionary of Occupational Titles (DOT), section on education and training of structural engineers, and 
the Handbook's section on the education and training for civil engineers. With the appeal counsel 
submitted Internet job advertisements to demonstrate the industry requirement of a related bachelor's 
degree. On appeal, counsel states that the director erroneously focused on only the duties such as 
inspecting c~nstructi~on sites, and that the fact that the beneficiary would be performing some of the duties 
of a construction manager does not take away from the fact that the primary duties are those of a junior 
civiVstructura1 engineer. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
$ 21 4.2(h)(4)(iii)(A). Therefore, the 
 position is not a specialty occupation. 
To determine whether the duties just described are those of a specialty occupation, the AAO first 
considers the criteria at 8 C.F.R. 5 214.2(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. Factors considered by 
WAC 04 245 50292 
Page 5 
the AAO when determining these criteria include: whether the Department of Labor's Handbook, on 
which the AAO routinely relies for the educational requirements of particular occupations, 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, Znc. 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)). 
On appeal, counsel asserts that the proffered position comports with that of a civil or structural engineer. 
The AAO, however, finds that the evidence of record does not support counsel's contention. Rather, to 
the extent that they are described in the record, the proposed duties do not exceed those of a civil 
engineering technician. The 2006-2007 Handbook's description of civil engineering technician, at 
http://www.bls.govlocolocosl12.htm, states: 
Engineering technicians use the principles and theories of science, 
engineering, and mathematics to solve technical problems in research 
and development, manufacturing, sales, construction, inspection, and 
maintenance. Their work is more limited in scope and application- 
oriented than that of scientists and engineers. Many engineering 
technicians assist engineers and scientists, especially in research and 
development. Others work in quality control, inspecting products and 
processes, conducting tests, or collecting data. In manufacturing, they 
may assist in product design, development, or production. Although 
many workers who repair or maintain various types of electrical, 
electronic, or mechanical equipment are called technicians, these workers 
are covered in the Handbook section on installation, maintenance, and 
repair occupations. 
Civil engineering technicians help civil engineers plan and build 
highways, buildings, bridges, dams, wastewater treatment systems, and 
other structures, as well as do related research. Some estimate 
construction costs and specify materials to be used, and some may even 
prepare drawings or perform land-surveying duties. Others may set up 
and monitor instruments used to study traffic conditions. 
The Handbook indicates that such a position does not normally require at least a bachelor's degree in a 
specific specialty. With respect to the educational qualifications for Civil engineering technicians, the 
Handbook states: 
Although it may be possible to qualify for certain engineering technician 
jobs without formal training, most employers prefer to hire someone with 
at least a 2-year associate degree in engineering technology. Training is 
WAC 04 245 50292 
Page 6 
available at technical institutes, community colleges, extension divisions 
of colleges and universities, public and private vocational-technical 
schools, and in the Armed Forces. Persons with college courses in 
science, engineering, and mathematics may qualify for some positions 
but may need additional specialized training and expefience. Although 
employers usually do not require engineering technicians to be certified, 
such certification may provide jobseekers a competitive advantage. 
Prospective engineering technicians should take as many high school 
science and math courses as possible to prepare for postsecondary 
programs in engineering technology. ~ost 2-year associate degree 
programs accredited by the Technology Accreditation Commission of the 
Accreditation Board for Engineering and Technology (ABET) require, at 
a minimum, college algebra and trigonometry and one or two basic 
science courses. Depending on the specialty, more math or science may 
be required. About 230 colleges offer ABET-accredited programs in 
engineering technology. 
The type of technical courses required also depends on the specialty. For 
example, prospective mechanical engineering technicians may take 
courses in fluid mechanics, thermodynamics, and mechanical design; 
electrical engineering technicians may need classes in electrical circuits, 
microprocessors, and digital electronics; and those preparing to work in 
environmental engineering technology need courses in environmental 
regulations and safe handling of hazardous materials. 
Because many engineering technicians assist in design work, creativity is 
desirable. Because.these workers often are part of a team of engineers 
and other technicians, good communication skills and the ability to work 
well with others also are important. 
Engineering technicians usually begin by performing routine duties 
under the close supervision of an experienced technician, technologist, 
engineer, .or scientist. As they gain experience, they are given more 
difficults assignments with only general supervision. Some engineering 
technicians eventually become supervisors. 
The National Institute for Certification in Engineering Technologies has 
established a voluntary certification program for engineering technicians. 
Certification is available at various levels, each level combining a written 
examination in 1 of about 30 specialties with a certain amount of job- 
related experience, a supervisory evaluation, and a recommendation. 
WAC 04.245 50292 
Page 7 
The Handbook does not establish a specific degree requirement for civil engineering technicians. The 
Handbook emphasizes technical training at technical school or two-year colleges, and work experience, 
and for advancement, varying combinations of experience and education depending on the type of 
engineering. 
The Handbook is clear that a bachelor's degree or its equivalent in engineering or other specialty is not 
the normal minimum requirement for entry into the occupation. Accordingly, the AAO finds that the 
petitioner has failed to establish the proffered position as a specialty occupation under the first criterion at 
8 C.F.R. $ 214.2(h)(4)(iii)(A)(I) - a baccalaureate or higher degree or its equivalent is normally the 
minimum requirement for entry into the particular position. 
The AAO now turns to a consideration of whether the proffered position may qualify as a specialty 
occupation under either of the prongs of the second criterion at 8 C.F.R. $ 214.2(h)(4)(ii)(A)(Z), that is, 
by establishing either that a degree requirement is common to the industry in parallel positions among 
similar organizations, or that the proffered position is so complex or unique that it can be performed only 
by an individual with a degree. 
Factors considered by the AAO when determining these criterion include: whether the Department of 
Labor's Occupational Outlook Handbook (Handbook), on which the AAO routinely relies for the 
educational requirements of particular occupations, reports 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 @. Minn. 1999) (quoting 
Hird/Blaker Cop. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted 4 Internet job postings 
for civiVstructura1 engineers. However, as previously the proffered position is that of a civil engineering 
technician, therefore the four advertisements do not provided a meaningful indication of degree 
requirements for civil engineering technician positions. Further, the duties of the advertised positions are 
not specific enough to compare with the job duties of the proffered position. Counsel asserts in the appeal 
brief that the petitioner's business is similar to the businesses in the advertisements. However, the 
petitioner provides no information that would establish them as organizations of comparable size and 
complexity to the petitioner. Thus, the petitioner has not established that the degree requirement is 
common to the industry in parallel positions among similar organizations. 
As already discussed,' the Handbook indicates that civil engineer technician positions normally do not 
require a baccalaureate degree or higher, or the equivalent, in a specific specialty. 
The record also does not include any submissions from individuals, firms, or professional associations in 
the industry regarding an industry recruiting and hiring standard. 
Therefore, the petitioner has failed to establish that a specific degree requirement is common to the 
industry in parallel positions among similar organizations. 
WAC 04 245 50292 
Page 8 
The AAO also finds that the petitioner has not satisfied the second alternative criterion of 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2), in that the evidence of record does not establish that the particular position here 
proffered is so complex or unique that it can be performed only by a person with at least a baccalaureate 
degree in a specific specialty. 
As reflected in the list of proposed duties copied from the record earlier in this decision, the petitioner has 
limited its description of those duties to generic and generalized functions,that comport with the general 
duties that the Handbook ascribes to the civil engineering technician occupation, which does not require 
at least a baccalaureate degree in engineering or any other specialty. The AAO is not persuaded by 
counsel's attempt on appeal to match the generalized duties in the record to the civil engineering 
occupation in the Handbook. To the extent that they described in the record, the duties described for the 
proffered position do not exceed those that the Handbook describes for civil engineering technicians. The 
record is devoid of any specific details about the duties comprising the proffered position that would 
distinguish it as unique from or more complex than a civil engineering technician position that can be 
performed without at least a bachelor's degree in engineering or any other specialty. 
As noted above, the petitioner has described duties normally performed by industrial engineering 
technicians. The AAO finds the petitioner to have provided no evidence that would support a finding that - 
the job duties are so complex or unique that they can be performed only by an individual with a degree in 
engineering. 
Therefore, the record also fails to establish that the position qualifies as a specialty occupation under the 
second alternative prong of 8 C.F.R:§ 214.2(h)(4)(iii)(A)(2) - the position is so complex or unique that it 
can be performed only by an individual with a degree. 
For the reasons discussed above, the petitioner has not established its position as a specialty occupation 
under either prong of the second criterion. 
The AAO next considers the criteria at 8 C.F.R. 5 214.2@)(4)(iii)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; and 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. 
To determine the petitioner's ability to meet the third criterion, the AAO normally reviews the 
petitioner's past employment practices, as well as the histories, including names and dates of 
employment, of those employees with degrees who previously held the position, and copies of those 
employees' diplomas. 
In the instant case, counsel has indicated that the proffered position is newly created. Counsel contends, 
however, that the petitioner would only hire a person with a baccalaureate degree for the position, and has 
a history of hiring professionals with baccalaureate degrees. However, the petitioner lists only one 
contractor with an engineering degree, and that person did not serve the position here described. Without 
WAC 04 245 50292 
Page 9 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N 
Dec. 533,534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). Accordingly, the petitioner has not established its position as a 
specialty occupation under the third criterion. 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) requires that a petitioner establish that the nature 
of the specific duties of the position are so specialized and complex that the knowledge required to 
perform them is usually associated with the attainment of a baccalaureate or higher degree. On appeal, 
counsel contends that the duties of the proffered position satisfy the criterion's requirements. 
' Counsel stated that the beneficiary will perform duties similar to those of a civiVstructural engineer. 
However, the job description provided does not indicate that the duties of the proffered position are 
distinguishable from those of a civil engineering technician described in the Handbook, which does not 
indicate that a degree in a specialty is required. The AAO accords little evidentiary weight to the 
work-product examples pertaining to the civil engineer which it has hired in the past. The record 
indicates that the referenced civil engineer is licensed to practice as such, but the beneficiary is not. 
Moreover, the duties listed in the record for the beneficiary do not encompass applications of engineering 
knowledge normally associated with a degree in engineering. 
Therefore, the proffered position has not been established as a specialty occupation under the 
requirements at 8 C.F.R. § 21 4.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets the requirements for a specialty occupation set forth at 8 C.F.R. 4 214,2(h)(4)(iii)(~). 
Beyond the decision of the director, the beneficiary is not qualified to perform the services of a specialty 
occupation. For this reason also, the petition must be denied. The AAO'finds that the record does not 
contain sufficient documentation to establish that the beneficiary qualifies to perform services in a 
specialty occupation, as required at section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), and 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(C). 
The regulation at 8 C.F.R. 214.2(h)(4)(iii)(~) requires the beneficiary to: 
(I) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation fiom an accredited college or university; 
(2) 
 Hold a foreign degree determined to be equivalent to a United States baccalaureate 
or higher degree required by the specialty occupation from an accredited college or 
university; 
WAC 04 245 50292 
Page 10 
(3) 
 Hold an unrestricted state license, registration or certification which authorizes him 
or her to fully,practice the specialty occupation and be immediately &gaged in that 
specialty in the state of intended employment; or 
(4) 
 Have education, specialized training, andlor progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation, and have recognition of expertise in the specialty through 
. 
 progressively responsible positions directly related to the specialty. 
No evidence has been submitted to establish that the beneficiary holds a U.S. degree in the specialty or a 
foreign degree equivalent to a U.S. degree in the specialty. 
When a beneficiary is determined to lack the specific degree required by a specialty occupation, the AAO 
relies upon the five criteria specified at 8 C.F.R. $ 214.2(h)(4)(iii)(D) to determine whether the individual 
may still qualify to perform the proffered position. A beneficiary who does not have a degree in the 
specific specialty may still qualify for an H-1B nonimrnigrant visa based on: 
(I) 
 An evaluation fiom an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
andor work experience; 
(2) 
 The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program on 
Noncollegiate Sponsored Tnstruction (PONSI); 
(3) 
 An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
(4) 
 Evidence of certification or registration hm a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
(5) 
 A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, andlor work experience in areas related to the specialty and that 
the alien has achieved recognition of expertise in the specialty occupation as a result 
of such training and experience. 
In support of its claim that the beneficiary has the equivalent of a degree, the petitioner submitted a copy 
of a degree issued to the beneficiary together with official transcripts fiom Far Eastern University, in 
Manila, Philippines. The degree certificate states that the beneficiary was issued a Bachelor of Science 
WAC 04 245 50292 
Page 1 1 
degree in Engineering. However, the record does not contain a degree equivalence evaluation. The 
petitioner has not complied with the regulation at 8 CFR § 214.2(h)(4)(iii)(D). The record does not 
establish that the foreign degree is the equivalent to a U.S. degree pursuant to 8 CFR 
214.2(h)(4)(iii)(D)(3). 
 The AAO notes that the record does not contain any other information 
pertaining to the beneficiary qualifications. Therefore, the record does not establish that the beneficiary 
has completed college level coursework equivalent to a U.S. baccalaureate degree. 
The record does not establish that the beneficiary is qualified to perform the services of a specialty 
occupation, in that he does not have the equivalent of a U.S. baccalaureate degree in the specific specialty 
that would be pertinent if the proffered position were actually a specialty occupation. For this additional 
reason, the petition may not be approved. 
Accordingly, the AAO shall not disturb the director's denial of the petition. 
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. me petition is denied.