dismissed H-1B Case: Video Security Systems

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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
PUBLIC COpy
SEP 1 92007
FILE: SRC 06 12453116 Office: TEXAS SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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
SRC 06 12453116
Page 2
DISCUSSION: The service center director 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 states that it is involved in the development, manufacture, specification, and application of video
equipment to function as closed-circuit television security and surveillance systems. It seeks to employ the
beneficiary as an electrical engineer and endeavors to classify him as a nonimmigrant worker in a specialty
occupation pursuant to section 101(a)(l5)(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 does not qualify as a specialty occupation. On
appeal, the petitioner submits a brief asserting that the offered position qualifies as a specialty occupation.
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty
occupation.
Section 101(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant 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. § I I84(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.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
[A]n 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;
(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;
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(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required
to perform the duties is usually associated with the attainment of a baccalaureate or
higher degree.
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R.
§ 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.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; (2)
the director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the
director's denial letter; and (5) the Form 1-290B with supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The petitioner is seeking the beneficiary's services as an electrical engineer. Evidence of the beneficiary's
duties was included with the Form 1-129 petition and in response to the director's request for evidence.
According to this evidence the beneficiary would:
• Lead the engineering department;
• Specify the technical requirements of equipment;
• Follow-up the manufacturing and quality control process;
• Provide pre and post-sale technical support;
• Provide technical support assistance;
• Project and specify the application of different products;
• Research and develop new products and technologies;
• Negotiate with manufacturers about prices, lead time, production processes and quality control;
• Plan inventory and production of the equipment and products;
• Follow-up the logistics of import/export;
• Manage sales orders and availability of inventory;
• Establish cost and price levels;
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• Provide general administration of the business;
• Contact customers;
• Establish target markets;
• Make commercial proposals;
• Negotiate projects (cost, price and special applications);
• Lead marketing strategies;
• Establish channels of distribution;
• Make business trips to promote products, attend work-shops, seminars and training; and
• Research new market niches.
The petitioner finds the beneficiary qualified for the proffered position by virtue of his foreign education
which has been determined by a credentials evaluation service to be equivalent to a bachelor's degree in.
electrical engineering from an accredited university in the United States.
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for
information about the duties and educational requirements of particular occupations. The petitioner contends
that the proffered position is essentially that of an electrical engineer. The AAO does not agree. Electrical
and electronics engineers design, develop, test, and supervise the manufacture of electrical and electronic
equipment. The petitioner contends that it would develop, design and manufacture closed circuit television
and surveillance systems, but the record does not support that contention. The record does not establish that
the petitioner has its own manufacturing facilities, or contain evidence of manufacturing contracts with
independent manufacturing entities. Nor does the record establish that that the petitioner is involved in the
design, development, and testing of equipment to be sold in the petitioner's business environment. Rather, it
appears from the record that the beneficiary would sell security systems manufactured by other entities.
According to the petitioner, the beneficiary would act as the chief executive officer of a company founded by
the beneficiary. In that capacity, the beneficiary would provide general administration and management
support for the company, make sales, provide marketing expertise, provide pre and post-sale technical
support, and perform other management duties involved in the petitioner's business operations. The
petitioner has failed to establish that the beneficiary would provide the services of an electrical engineer in the
petitioner's business environment.
The duties of the proffered position, as detailed by the petitioner and stated in the record, are those of a
company's chief executive officer (general/operations manager) who plans, directs, or coordinates the.
operations of companies or public and private sector organizations. These managers formulate policies,
manage daily operations, and plan the use of materials and human resources. The petitioner has not met any
of the above requirements to qualify the offered position as a specialty occupation. The proffered position
SRC 06 12453116
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requires general managerial skills, and those skills do not arise from any particular specialty. Indeed, many
management or top executive positions are filled by promoting experienced, lower level managers from
within an organization. Other top executives/managers hold degrees in business administration or a liberal
arts degree. A college degree in a specific specialty is not a minimum requirement for entry into the field of
management. A degree in a wide range of disciplines will suffice for positions that do require a college
education. The petitioner has, therefore, failed to establish the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).
The petitioner states that a degree requirement in a specific specialty is common to the industry in parallel
positions among similar organizations, but provides no evidence in this regard. Simply going on the record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N 190 (Reg. Comm. 1972)). The petitioner has failed to establish the criterion at 8 C.F.R.
§ 214.2(h)( 4)(iii)(A)(2).
The petitioner does not state that it normally requires a degree in a specific specialty for entry into the
proffered position, as this is a new position with the company. The petitioner has failed to establish the
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).
The petitioner has not established that the nature of the specific duties is so specialized and complex that
knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher
degree in a specific specialty. Nor has it established that the duties of the offered position are so complex or
unique that they can only be performed by an individual with a degree in a specific specialty. The duties of
general and operations managers in small companies, such as the petitioner, include formulating policy,
managing daily operations, and planning the use of materials and human resources, and are too diverse and
general in nature to classify in any single area of management. They perform services in virtually all areas of
business operations, such as marketing, accounting, human resources, and general administration. The duties
of the proffered position, as detailed in the record, are not any more specialized, complex or unique than those
normally performed by general/operations managers who are not required to have a baccalaureate level
education in a specific educational discipline. As previously stated, degrees in a wide range of unrelated
educational disciplines are acceptable for management positions requiring a college education. The petitioner
has failed to satisfy the referenced criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or (4).
As related in the discussion above, the petitioner has failed to establish that the proffered position is a
specialty occupation. 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 and the appeal shall accordingly be dismissed.
ORDER: The appeal is dismissed. The petition is denied.