remanded H-1B Case: Education

U.S. Department of Homeland Security 
20 Mass Ave , N.W., Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 21 1 52737 Office: CALIFORNIA SERVICE CENTER Date: qrp 7 +jqm- 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 10 1 (a)(1 S)(R)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 I 10 l(a)(l 5)(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. Wiemarin, Director 
Administrative Appeals Office 
WAC 03 2 1 1 52737 
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 The director's decision will be withdrawn.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 public charter school that seeks to employ the beneficiary as a first grade bi-lingual 
teacher. The petitioner, therefore, endeavors to classify the beneficiary as a noninxnigra~t worker in a specialty 
occupation pursuant to section lOl(a)(lS)(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 because the evidence does not establish that the 
petitioner engages in a business to employ a specialty occupation position. On appeal, counsel submits a brief 
and new evidence. 
The record of proceeding before the AAO contains: (1) 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. 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. fj 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 parhcular 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. 
§ 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 03 2 11 52737 
Page 3 
The petitioner is seeking the beneficiary's services as a first grade bi-lingual teacher. 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 this evidence, the beneficiary would perform 
duties that entail preparing course objectives and outlines following the curriculum guidelines or requirements 
of state and school; lecturing, demonstrating and using audiovisual teaching aids to present subject matter to 
class; preparing, administering and correcting tests, and recording results; assigning lessons, correcting 
papers, and hearing oral presentations; teaching rules of conduct, and maintaining order in classroom and on 
playground; counseling students when adjustment and academic problems arise; discussing students' 
academic and behavioral attitudes and alchievements with parents; keeping attendance and grade records as 
required by school; coordinating class field trips; performing other duties as assigned by the principal. The 
petitioner indicated that it required at least a bachelor's degree and appropriate coursework and training, as 
evaluated by the California Commission on Teacher Credentialing. 
The director issued a request for additional information regarding the beneficiary's credentials and 
specifically requested evidence that the b~eneficiary has been certified to teach in the State of California. The 
director requested the following: evidence of filing the Labor Condition Application, Form ETA 9035, 
evidence that the school is accredited, information about the petitioner, federal income tax returns, state 
income tax returns, payroll summary, list of all employees, organizational chart, photographs of the business 
premises, lease agreement, and telephone listing. 
Counsel provided a copy of the beneficiary's education evaluation indicating that she had the equivalent of a 
bachelor's degree in education. Counsel provided a letter from the Commission of Teaching Credentialing 
which counsel contends establishes the beneficiary's eligibility to teach. Counsel contended that this letter 
serves as evidence of authorization from the Commission of Teachers Credentialing of California to teach in 
Califomia public schools. Counsel submitted a labor certification application that was certified on April 12, 
2004. Counsel contended that the petitioner was accepted as a charter school by the Board of Trustees of the 
East Side Union High School District and was assigned a charter school number in September 2002. The 
petitioner provided a copy of the print out from the website of the California Department of Education listing 
the petitioner as a Charter School. Counsel submitted a copy of the Board of Trustees Minutes of East Side 
Union High School District of June 2002 that indicated that the petitioner's charter petition was approved. 
Counsel submitted a copy of the petitioner's brochure and a copy of the lease with the school site located at 
467 N. White Road, San Jose. 
The director noted that the petitioner did not submit all of the requested evidence. The director found that he 
was unable to determine if the petitioner is a United States employer as defined by the regulations. Therefore, 
the director found that without evidence to show that the petitioner engages in the business of investment firm 
[sic], the beneficiary will be entering the United States to be employed in other that a specialty occupation. 
On appeal, counsel asserts that the petitioner is a valid business entity - a California Charter Public School. 
Counsel submits additional information such as a copy of the 2002 federal tax return extension request and 
explained that the school opened in August 2002; therefore, one tax return will be due on May 15, 2004 due 
WAC 03 21 1 52737 
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to the extension request. The petitioner submitted copies of the Form 941 quarterly tax returns. Counsel 
explained that the petitioner had concerns about submitting the Forms DE-6 with the employees' connplete 
information in them. Additionally, the petitioner submitted a copy of the organizational chart, and a copy of 
the last minute memo dated September 1 1, 2003 from the California Department of Education, indicating that 
the petitioner was awarded $400,000 from the Public Charter School Program. The petitioner submitted a 
copy of the phone book listing and noted that the petitioner had moved since then and referred to the lease 
that was previously submitted. 
Upon review of the record, the AAO finds that the petitioner has established that it is operating as a public 
charter school in the State of California. 
The petition may not 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. $ 214,2(h)(4)(iii)(A) and whether the beneficiary is 
qualified for the position under the cr,iterion at 8 C.F.R. 5 214.2(h)(4)(iii)(C). Additionally, the Labor 
Condition Application in the record was certified on April 12, 2004, therefore the record is not clear that the 
petition met the requirements listed at 8 C.F.R. # 214.2(h)(4)(iii)(B). 
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 issue of whether the position 
offered is a specialty occupation, whether the beneficiary is qualified to perform the duties of the specialty 
occupation and whether the petitioner met the requirements for filing the labor condition application before 
submitting the initial petition. The direcltor 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. 5 136 1. 
ORDER: The director's April 30,2004 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.