dismissed H-1B Case: Web Design

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 248 52478 Office: CALIFORNIA SERVICE CENTER Date: AUG 1 8 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l 5)(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 
WAC 04 248 52478 
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 is a wholesaler of cellular telephones that seeks to employ the beneficiary as a full-time web 
designer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation 
pursuant to 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 lOl(a)(l S)(H)(i)(b). 
The director denied the petition because the petitioner has not demonstrated that it has a bona fide position for 
the beneficiary. On appeal, the petitioner submits a brief and additional evidence, including: a copy of the 
minutes of a special meeting reflecting the petitioner's decision to hire a web designer; samples of software to 
be used by the petitioner; and copies of job advertisements with supporting documentation for similar 
positions. 
The record contains a G-28, Notice of Entry of Appearance as Attorney or Representative, signed by 
Benjamin Pan of the University of Pennsylvania Law School. A review of the Recognized Organizations and 
Accredited Representatives Roster, dated July 10, 2006, of the Department of Justice's Executive Office for 
Immigration Review, at http://www.usdoi.gov/eoir/statspub/AC30405.pdf, does not find the University of 
Pennsylvania Law School or Benjamin Pan listed as a recognized organization or an accredited 
representative. Accordingly, the AAO shall treat the petitioner as self-represented and a copy of this decision 
shall not be forwarded to Mr. Pan. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. 3 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(2) 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; 
(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. 
WAC 04 248 52478 
Page 3 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 
8 C.F.R. tj 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) 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) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a full-time web designer. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's August 3 1, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: designing, creating, and updating the petitioner's internal and external web pages; 
designing, developing, and maintaining the petitioner's sites including flowcharts and layouts; creating, 
updating, and adding new features and changes to the appearance of these sites; coordinating web content, 
text, and graphics to ensure their consistency with company branding, communication, products, and services; 
creating promotional materials and writing articles; and performing marketing and administrative duties and 
webldatabase software support and maintenance. The petitioner indicated that a qualified candidate for the job 
would possess a bachelor's degree in computer science, software engineering, or electrical engineering. 
The director denied the petition because the petitioner has not demonstrated that it has a bona fide position for 
the beneficiary. 
On appeal, the petitioner's president states, in part, that he is submitting new evidence to show that the 
proffered position of web designer is a bona fide position. He submits the following: a copy of the minutes of 
a special meeting reflecting the petitioner's decision to hire a web designer; samples of software to be used by 
the petitioner; and copies ofjob advertisements with supporting documentation for similar positions. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. tj 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. tj 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 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 such firms "routinely employ and recruit only 
degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999)(quoting HirdIBlaker 
Corp. v. Sava, 7 12 F. Supp. 1095, I 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with the petitioner that the proffered position is a specialty 
occupation. A review of the Computer Scientists and Database Administrators training requirements, which 
WAC 04 248 52478 
Page 4 
include web designer positions, in the Handbook, 2006-2007 edition, finds that "[m]ost community colleges and 
many independent technical institutes and proprietary schools offer an associate's degree in computer science or a 
related information technology field. Many of these programs may be more geared toward meeting the needs of 
local businesses and are more occupation specific than are 4-year programs." In this case, information on the 
petition, which was signed by the petitioner's president on August 23, 2004, reflects that the petitioner is a 
cellular phone wholesale business, established in 1997, with seven current employees. It is noted that the 
petitioner's 2003 federal income tax return reflects only $23,751 paid in compensation of officers, and 
$35,298 paid in salaries and wages. The evidence of record does not support the petitioner's claim of seven 
employees. 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 SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). No evidence in the 
Handbook indicates that a baccalaureate or higher degree, or its equivalent, is required for a web designer position 
of the nature described in the instant petition. Further, without the supporting documentary evidence, as described 
above, the petitioner has not persuasively demonstrated that the proffered position is a specialty occupation, 
or that the petitioner will employ the beneficiary in a specialty occupation. 
Regarding parallel positions in the petitioner's industry, on appeal the petitioner submitted Internet job 
postings for a web programmer position and a web designer position, both of which require a related 
bachelor's degree. As discussed above, the evidence of record for the proffered position is deficient. The 
petitioner, therefore, has not established that the employers issuing those postings are similar to the petitioner, 
or that the advertised positions are parallel to the instant position. Thus, the Internet job postings and 
supporting documentation submitted on appeal are not probative. 
In response to the director's request for additional evidence, the petitioner asserted 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 
the service center in the prior cases. Specifically, although the petitioner submitted some supporting 
documentation for the prior cases, the record does not contain copies of the correspondent petitions. In the 
absence of all of the corroborating evidence contained in those records of proceeding, the documents 
submitted by the petitioner are 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. 5 103.8(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. 5 103.2(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). 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. As 
WAC 04 248 52478 
Page 5 
indicated in the earlier discussion about the Handbook's information, to the extent that it is depicted in the 
record, the proffered position does not appear unique from or more complex than web designer positions that do 
not normally require at least a baccalaureate degree, or the equivalent, in a specific specialty. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I) or (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 the petitioner does not address this issue on appeal, it will not be 
discussed further. The evidence of record does not establish this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. $ 214.2(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 
attainment of a baccalaureate or higher degree. 
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, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 4 214.2(h)(4)(iii)(A)(4). The information in the record about the proposed duties 
does not establish that they exceed in scope, specialization, or complexity those usually performed by web 
designers for local businesses, an occupational category for which the Handbook indicates no requirement for 
or usual association with a baccalaureate or higher degree in a specific specialty. 
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 29 1 of the Act, 8 U.S.C. 136 1. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.