dismissed H-1B Case: Travel Services

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 2 8 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law ncir establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
��k 
Ron Ro��rilierg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The service center director (hereinafter "director") denied the nonimmigrant visa 
petition, and the matter is now before the Administrative Appeals Office on appeal. The appeal will 
be dismissed. The petition will be denied. 
I. PROCEDURAL AND FACTUAL BACKGROUND 
On the Form I -129 visa petition, the petitioner describes itself as a travel agency established in 
In order to continue to employ the beneficiary part-time for "3 0-35 hours " per week in what it 
designates as a corporate writer position, the petitioner seeks to classify her 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, finding that the petitioner failed to establish that it would employ 
the beneficiary in a specialty occupation position. On appeal, counsel asserted that the director's 
basis for denial was erroneous and contended that the petitioner satisfied all evidentiary 
. 1 
reqmrements. 
As will be discussed below, we have determined that the director did not err in her decision to deny 
the petition on the specialty occupation issue. Accordingly, the director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
We base our decision upon our review of the entire record of proceeding, which includes: (1) the 
petitioner's Form I-129 and the supporting documentation filed with it; (2) the service center's 
request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
denial letter; and (5) the Form I-290B and counsel's submissions on appeal. 
II. THE LAW 
The issue before us is whether the petitioner has demonstrated that the proffered position qualifies as 
a specialty occupation. Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defi nes the term 
"specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
1 A attorney signed the visa petition and submitted a Form G-28, Entry of Appearance as 
Attorney or Accredited Representative, indicating that he prepared the visa petition and represented the 
petitioner. A different attorney signed a Form G-28 that was submitted with the appeal in this 
matter, indicating that he now represents the petitioner. All submissions will be considered, but today's 
decision will be furnished only to the petitioner and to the petitioner's present attorney. Further, both 
attorneys will be referred to as "counsel," without distinction, in this decision. 
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(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 regulation at 8 C.P.R. § 214.2(h)(4) (ii) states, in pertinent part, the following: 
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.P.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the mtmmum 
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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4) (iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.P.R. § 214.2(h)(4) (ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1 988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 214.2(h)( 4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)( 4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)( 4)(iii)(A) must therefore be read as providing supplemental criteria that 
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must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS 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 occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-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. 
III. EVIDENCE 
The Labor Condition Application (LCA) submitted to support the visa pet1t10n states that the 
proffered position is a "Corporate Writer" position, and that it corresponds to Standard Occupational 
Classification (SOC) code and title 27-3043, Writers and Authors from the Occupational 
Information Network (O*NET). The LCA further states that the proffered position is a Level I, 
entry-level, position. 
With the visa petition, counsel submitted evidence that the beneficiary received a bachelor's degree 
in language and literature from , where she majored in English 
language. An evaluation in the record states that the beneficiary's degree is equivalent to a U.S. 
bachelor's degree in English language and literature. 
Counsel also submitted: (1) a copy of the beneficiary's resume; (2) an evaluation, dated September 
9, 2010, of the proffered position; (3) a letter, dated August 20, 2013, from the petitioner's president; 
and (4) counsel's own letter, dated August 23, 2013. 
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The beneficiary's resume states that she worked for companies in South Korea, then a different 
company in the United States, prior to commencing work for the petitioner in August of 2009.2 
The petitioner's president's August 20, 2013 letter states that the petitioner specializes is selling 
travel services to Koreans vacationing in the United States and to the Korean community in 
and elsewhere in the United States.3 It further states: 
o In support of the company's tour functions, [the beneficiary] will continue to 
write, edit, and produce original multi-media tour and travel features articles, 
reports and publications employing journalistic/web writing styles and 
incorporating photography, graphics and video where relevant to her writing. She 
will continue to create and draft written materials and brochures that are clear, 
concise, and grammatical adheres [sic] to the principles of good composition and 
is [sic] presented in a manner appropriate to our intended traveling audiences. 
[The beneficiary] will continue to draft and coordinate corporate communications 
tour projects, including corporate and sponsored communications, directories, 
brochures, media, print, and radio advertisements and more. She will continue to 
draft and write news features and columns regarding popular travel destinations, 
travel promotions and activities, as well as media advertisements emphasizing our 
service features, benefits, and unique value propositions in order to sell in today's 
competitive market. She will continue to edit, format, and oversee the publication 
and distribution of the company's corporate materials, including published 
articles, formal business proposals, public relations materials, corporate fact 
sheets, press releases, and other promotional materials that will help develop 
credibility and favorable images regarding our services by utilizing a variety of 
media outlets and sources. She will update and revise previously written 
materials with updated company information and keep the materials current. [The 
beneficiary] will continue to proofread and review materials, obtain necessary 
approvals and provide support to other departments (35% ); 
o [The beneficiary] will continue to focus on preparing promotional materials in 
terms of travel specials and seasonal specials. In other works, she drafts 
insightful and strategic promotional and advertising materials that will best 
promote the client's travel objectives and plans. These materials include company 
2 The beneficiary's resume appears to contain an error. It states that the beneficiary worked for a South 
Korean company from "Dec. 2009- Mar. 2009," then for a company in the United States from "April 2009-
July 2009." As stated, those two periods would overlap and, therefore, conflict. However, we believe that 
the beneficiary intended to say that she began work for that South Korean company in December of 2008. 
We attach no significance to what is apparently a typographical error. 
3 The petitioner's president did not state that the proffered position has any educational requirement. 
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profiles, product portfolios, trend reports, presentations and client -specific 
promotional news releases or articles. (The beneficiary] will continue to write, 
review, and edit completed drafts of promotional and advertising materials, both 
in English and Korea [sic], for accuracy and consistency, and make changes to 
improve overall expression and vocabulary to ensure the materials convey the 
desired messages and information. She creates engaging, well-organized 
technical and non-technical text for use in such traveling venues such as web 
sites, newsletters, brochures, and even video productions (30%) 
o (The beneficiary] will continue to prepare documents to facilitate international 
communications between our clients, traveling vendors, and travel partners in 
South Korea. Those documents include business letters and proposals. She will 
continue to prepare these reports covering not only our company's services, but on 
emerging traveling markets, new business opportunities and popular travel sites. 
o (The beneficiary] spends time editing, formatting, and overseeing the publication 
and distribution of our corporate materials, including articles, formal business 
proposals, public relations materials, corporate fact sheets, press releases, and 
other promotional materials that help develop credibility and favorable images 
regarding our services by utilizing various media outlets and sources (25% ); 
o (The beneficiary] will continue to analyze special traveling requirements, 
compare and contrast the written requirements with the company's requirements 
to assess feasibility, assemble technical data, develop source material and consult 
with other staff involved in the preparation of draft materials. She will continue 
to facilitate dialogue between colleagues to better understand written 
communication requirements and collaborate with graphic artists, photographers, 
and others in content production. She will continue to serve as liaison with other 
writers, editors and media producers to assist in ensuring that communications 
materials, publications and reports conform to relevant sponsor requirements and 
complement established communications strategy (5% ); and 
o (The beneficiary] wil1 continue to be assisting in all speech wntmg, public 
presentations, and information programs and advising the marketing manager and 
upper management with regard to the information to be included in promotional 
materials, travel fairs, travel industry reports (5% ). 
The position evaluation expresses the evaluator's opinion that, "the position of Corporate Writer ... 
requires the services of someone with advanced training through a Bachelor's program in English or 
a closely related field. " 
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In his own August 23, 2013 letter, counsel cited the position evaluation and the U.S. Department of 
Labor's Occupational Outlook Handbook (Handbook) as evidence that the proffered position 
qualifies as a specialty occupation position. 
On December 14, 2013, the service center issued an RFE in this matter. The service center 
requested, inter alia, evidence that the petitioner would employ the beneficiary in a specialty 
occupation. The service center provided a non-exhaustive list of items that might be used to satisfy 
the specialty occupation requirements. 
In response, counsel submitted: (1) two vacancy announcements placed by the petitioner; (2) six 
vacancy announcements placed by other com anies; (3) a declaration, dated December 26, 2013, 
from the operations manager of and (4) counsel's own letter, dated 
January 8, 2014. 
The two vacancy announcements placed by the petitioner are both for "Corporate Writer" positions, 
and each states that the position requires a "BS/BA Degree in English Language and Literature or 
related. " 
_ 
December 26, 2013 declaration states that hiring a corporate writer is common practice 
in the travel industry, that employing a corporate writer is essential for that it is common 
practice to hire only corporate writers with a bachelor's degree in "English Language & Literature or 
related," and that has always employed a corporate writer with a bachelor's degree in 
"English Language & Literature or related." 
In his January 8, 2014 letter, counsel observed that the beneficiary was previously granted H-1B 
status, and that the instant visa petition is an extension petition. Counsel asserted that the evidence 
submitted demonstrates that the proffered position is a specialty occupation position and also stated: 
The qualifications of a Corporate Writer include more than just creative writing and 
marketing skills; in addition, he/she must be familiar with the wide range of services 
and products the business is selling, understand how businesses operate efficiently 
and remain profitable, comprehend demands and prices for services, utilize and apply 
precise editing and marketing skills, be aware of pricing strategies, must be able to 
communicate effectively, etc. Such skills, at a minimum, can only be attained 
through a formal education from a four-year college or university program in English 
Language and Literature or related. 
The director denied the petition on May 16, 2014, finding, as was noted above, that the petitioner 
had not demonstrated that the proffered position qualifies as a position in a specialty occupation by 
virtue of requiring a minimum of a bachelor's degree in a specific specialty or its equivalent. More 
specifically, the director found that the petitioner had satisfied none of the supplemental criteria set 
forth at 8 C.F.R. § 214.2(h)(4) (iii)(A). 
· 
.. . · ·····--- - ---·---·-··----·· ------- ----
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On appeal, counsel submitted (1) a letter, dated June 10, 2014, from signing as 
president of (2) an evaluation of the proffered position, dated June 11, 2014, 
prepared by , an associate professor of journalism at at 
and (3) a brief, dated June 12, 2014. 
In his June 10, 2014 letter 
employed corporate writers and stated: 
asserted that his company, 
A candidate who is expected to perform the duties of a Corporate Writer in our 
competitive industry must have at least a baccalaureate degree in English Language & 
Literature or related can handle this position because of the knowledge required to 
perform the complex duties involved and to be able to write concisely and 
persuasive! y. [sic] 
has 
In her June 11, 2014 evaluation of the proffered position, asserted that in her opinion 
the duties of the proffered position "require preparation at a Bachelor's Degree in Communications, 
English, or a related area level at a minimum." 
In his brief, counsel again asserted that the evidence presented demonstrates that the proffered 
position qualifies as a specialty occupation position and cited the Handbook in support of that 
assertion. 
IV. ANALYSIS 
As a preliminary matter, we note that counsel's January 8, 2014 letter contained a description of 
skills required in the proffered position and asserted that obtaining a bachelor's degree in English 
language and literature or a closely related subject is the only path that leads to those skills. Some of 
the skills discussed were maintaining familiarity with the goods and services a company offers, 
understanding how businesses operate efficiently and remain profitable, comprehending demands 
and prices for services, and being aware of pricing strategies. 
We observe that a curriculum in English language and literature is not closely related to marketing, 
familiarity with a company's product line, understanding efficient business operations, or 
understanding demand and pricing strategies. Counsel's assertion that those topics can only be 
grasped by someone with a bachelor's degree in English language and literature is not supported by 
the evidence. 
December 26, 2013 declaration states that hiring a corporate writer is common practice 
in the travel industry. asserted that his company, has employed 
corporate writers. 
The petitioner is a travel agency. We observe that travel agencies typically earn a commission by 
booking air travel, rental cars, and other travel services on behalf of suppliers. Notwithstanding the 
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assurances of the petitioner, and we find insufficient evidence to support 
the proposition that travel agencies commonly employ corporate writers. 
The petitioner's business is slightly different from most other travel agencies in the United States in 
that its target audience is the Korean. As such, they may be unable to rely upon travel brochures 
provided by cruise lines, package tour operators, and other vacation destination service providers. 
However, rewriting those brochures for the Korean market is a job for a translator, rather than a 
corporate writer. Further we find insufficient evidence that the task of rewriting those brochures for 
the Korean-speaking market would encompass 30 hours of employment per week for three years. 
The petitioner also states that the beneficiary would compose business correspondence. The record, 
however, contains insufficient evidence to demonstrate that businesses in general, or travel agencies 
in particular, employ a corporate writer to compose their business correspondence or, if they did, that 
the position would require a minimum of a bachelor's degree in a specific specialty or its equivalent, 
or anything more than basic secretarial skills. 
In any event, we observe that the petitioner, a travel agency, proposes to employ the beneficiary for 
at least 30 hours per week composing travel brochures, advertising copy, correspondence, etc. The 
evidence submitted, however, is insufficient to demonstrate that the petitioner would be able to 
utilize the services of a writer for even 30 hours per week. Therefore, the substantive nature of the 
duties the beneficiary would actually perform if the visa petition were approved has not been 
demonstrated. 
The petitioner's failure to establish the substantive nature of the work to be performed by the 
beneficiary precludes a finding that the proffered position is a specialty occupation under any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
The petitioner has failed to establish that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that the proffered position qualifies as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
V. CONCLUSION 
We recognize that this is an extension petition. The director's decision does not indicate whether 
she reviewed the prior approvals of the previous nonimmigrant petitions filed on behalf of the 
beneficiary. If the previous nonimmigrant petitions were approved based on the same evidence 
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contained in the current record, however, those approvals would constitute material and gross error 
on the part of the director. We are not required to approve applications or 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). It would be 
absurd to suggest that USCIS or any 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). A prior approval does not compel the approval of a subsequent petition or relieve the 
petitioner of its burden to provide sufficient documentation to establish current eligibility for the 
benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.