remanded H-1B Case: Construction

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prevent clearly unwarranted 
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pUBL1C COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
h 
FILE: WAC 04 219 53685 Office: CALIFORNIA SERVICE CENTER Date: dAh 2M6 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 1 10 l(a)(lS)(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. 
*&'7+uig ,%a Robert P. Wiemann, D' ctor 
I 
Administrative ~~~eals Office 
WAC 04 219 53685 
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 The director's decision will be withdrawn. The 
petition will be remanded for the entry of a new decision. 
The petitioner is a construction company with five employees that seeks to employ the beneficiary as a 
project manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). The director denied the petition because the petitioner did not submit all 
evidence as requested by the director. The director found that the record as presently constituted, prohibits 
the director from making an affirmative determination as to the nature, complexity, and viability of the 
petitioner's business. The director found that the petitioner did not meet its burden of proof. On appeal, 
counsel submits a brief and additional evidence. 
The record of proceeding before the AAO contains: (I) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) counsel'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. 
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. 
Pursuant to 8 C.F.R. $ 214.20(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; 
(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 criteria at 8 C.F.R. 
9 214.2(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. 
WAC 04 219 53685 
Page 3 
The petitioner is seelung the beneficiary's services as a project manager. Evidence of the beneficiary's duties 
includes: the Form 1-129; the attachments accompanying the Form 1-129; and counsel's response to the 
director's request for evidence. According to the July 29, 2004 letter of support that the petitioner submitted 
with the petition, the beneficiary would perform these duties: "Review drawing specifications"; "Prepare 
project diary and documentation"; "Review for approval of project to meet specifications and regulations, 
change orders, pay applications and other project documentation"; and "Prepare cost reports and narrative 
reports on an outgoing basis for tracking purposes." 
The director issued a request for evidence to establish that the proffered position meets the above listed 
criteria as a specialty occupation. The director requested a more detailed description of the work done, 
including specific job duties, the percentage of time to be spent on each duty, level of responsibility, and 
types of employees supervised. The director requested a foreign educational credentials evaluation. The 
director requested information to substantiate the information provided on the Form 1-129. The director 
requested copies of the petitioner's Form DE-6 quarterly wage reports for all employees for the last six 
quarters. The director requested a line and block organizational chart showing the petitioner's hierarchy and 
staffing levels. The director requested a list of all employees by name and job title, and a brief description of 
the job duties and educational level of the employees employed under the direction of the proposed position. 
The director requested photographs of the petitioner's business premises, including company logos. 
The petitioner provided a more detailed description of the work to be performed including the following 
duties: planning, organizing and directing activities concerned with construction, design and calculation of 
"construction project"; inspecting and reviewing project construction preparation, drawings and specifications 
to ensure work conforms to specifications; studying job specifications to plan and maintain control of job 
cost; communicating design requirements to vendors; directing and overseeing work of designers to ensure 
that the project meets specifications; reviewing approval of the project to meet specifications, regulations, 
change orders, pay applications and other project documentation; specifying order of supplies and purchase 
materials to complete the construction project; preparing reports concerning such areas as work progress, 
costs and scheduling and narrative reports on an outgoing basis for tracking purposes; estimating and 
preparing proposal documentation for the project and preparing project diary and documentation. The 
petitioner submitted a letter from an assistant professor of engineering in support of its contention that the 
position requires a bachelor's degree in a specific specialty. The petitioner submitted a foreign educational 
credentials evaluation indicating that the beneficiary has the equivalent of a bachelor's degree in architectural 
engineering. The petitioner did not submit the requested copies of the DE-6 quarterly wage reports as the 
employer maintained they contain confidential information about the employer which is protected by 
California privacy law. Counsel asserted that the quarterly wage reports for an H-IB petition are not required 
by federal regulations. The petitioner provided an organizational chart which included the positions of 
C.E.O., wood-frame construction manager, sub-construction manager and secretarytaccountant. 
The director noted that the petitioner did not submit all of the requested evidence. The director noted that the 
specific duties of the offered position combined with the nature of the petitioning entity's business operations 
are factors that CIS considers. The director noted that the petitioner is a construction company. The director 
found that the nature of the petitioner's business operation was not entirely clear. The director noted that the 
petitioner did not submit the requested DE-6 forms. The director found that failure to offer a complete 
response to a request for evidence is grounds for denial and summarized 8 C.F.R 9 103.2(b)(14). The director 
I WAC 04 2 19 53685 
Page 4 
found that, as a consequence of the petitioner's non-production of the DE-6 forms, the record as presently 
constituted prohibits the director from making an affirmative determination as to the nature, complexity, and 
viability of the petitioner's business. 
On appeal, counsel asserts that the director misinterpreted and misstated 8 C.F.R 5 103.2@)(14). Counsel 
contends that the director misunderstood the nature of the petitioner's business. Counsel asserts that the 
director's sole basis for denying the petition was the petitioner's failure to provide copies of its DE-6 quarterly 
wage reports for the last six quarters. Counsel contends that copies of quarterly wage reports for the year and 
half prior to the submission of the petition would not evidence "the nature, operations, complexity, and 
structure" of the petitioner's business, and therefore would not be relevant. 
Counsel asserts that the director misinterpreted the regulation at 8 C.F.R. 103.2 (b)(14) which provides: 
Where an applicant or petitioner does not submit all requested additional evidence and 
requests a decision based on the evidence already submitted, a decision shall be issued based 
on the record. Failure to submit requested evidence which precludes a material line of 
inquiry shall be grounds for denying the application or petition. Failure to appear for 
, required fingerprinting or for a required interview, or to give required testimony, shall result 
in the denial of the related application or petition. 
Counsel asserts that failure to submit quarterly wage reports did not preclude a material line of inquiry. Upon 
review of the record, the AAO finds that counsel is correct. 
The petition may not be granted, however, as the director has not made a determination on whether the 
position qualifies as a specialty occupation pursuant to 8 C.F.R. 8 214.2(h)(4)(iii)(A) and whether the 
beneficiary is qualified for the position under the criteria at 8 C.F.R. $214.2(h)(4)(iii)(C). 
The director's decision will be withdrawn and the matter remanded for entry of a new decision. The director 
may afford the petitioner reasonable time to provide evidence pertinent to the issues of whether the position 
offered is a specialty occupation, and whether the beneficiary is qualified to perform the duties of the 
specialty occupation. The director shall then render a new decision based on the evidence of record as it 
relates to the regulatory requirements for eligibility. As always, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
ORDER: The director's October 14, 2004 decision is withdrawn. The petition is remanded to the director 
for entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for 
review.