remanded H-1B Case: Land Surveying And Civil Engineering

U.S. Department of Homeland Security 
20 Mass Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
n ,--_ 
FILE: WAC 04 253 5 1497 Office: CALIFORNIA SERVICE CENTER Date: a 3 63 20@ 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101 (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. 
T* & Robert P. Wiemann. Dire or w 
Administrative Appeals Office 
WAC 04 253 51497 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn and the 
matter remanded for a new decision. 
The petitioner is a firm specializing in land surveying and civil engineering that seeks to employ the 
beneficiary as a survey party chief and to classify her as a nonimrnigrant worker in a specialty occupation 
pursuant to section 10 1 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101 (a)(l5)(H)(i)(b). 
The director denied the petition on the grounds that the petitioner failed to establish that the proposed position 
meets the definition of specialty occupation and that the petitioner failed to show that the beneficiary 
possessed the licensure to practice as a land surveyor. On appeal, the petitioner asserts that it requires a 
bachelor's degree in surveying for the proposed position and that the beneficiary is properly exempt from the 
licensure requirement because she is the subordinate of a duly licensed surveyor. The AAO finds that the 
proposed position is a specialty occupation and that the beneficiary does not require licensure. As discussed 
below, however, the petition must be remanded to the director for a decision as to whether or not the 
beneficiary's foreign degree qualifies her to serve in the specialty occupation in accordance with the 
regulations at 8 C .F.R. 3 3 2 14.2(h)(4)(iii)(C) and (D). 
Section 214(i)(l) of the Act, 8 U.S.C. 8 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. 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) 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. 
3 214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific field of study that 
is directly related to the proposed position. 
WAC 04 253 51497 
Page 3 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence (RFE); (3) the petitioner's response to the WE; (4) the director's 
denial letter; and (5) Form I-290B and accompanying brief. The AAO reviewed the record in its entirety 
before issuing its decision. 
The petitioner seeks the beneficiary's services as a survey party chief. Evidence of the beneficiary's duties 
includes counsel's cover letter and the petitioner's support letter attached to the Form 1-129, the petitioner's 
response to the RFE, and the petitioner's brief on appeal. According to this evidence, the beneficiary's duties 
would include: 
planning the details for specific survey projects; 
interpreting engineering field notes; 
making accurate survey calculations, both manually and using an HP4 1 calculator; 
having knowledge of techniques of drafting and mapping; 
exercising the ability to understand legal property descriptions, construction drawings, 
engineering records, and complex maps; 
exercising knowledge of surveying principles, practices and equipment, and mathematics, 
including trigonometry as applied to land surveying; 
organizing, assigning, directing, reviewing and participating in the work of+a survey party 
in conducting preliminary, location, construction, property, topographic a~d other precise 
surveys; 
planning, directing, and managing the training crew members in the performance of 
difficult survey operations; 
planning, directing, and managing the crew in the proper operation of the transit level, 
electronic distance measuring instruments, and other survey equipment; 
establishing and maintaining effective work procedures and safety practices for the field 
crew; 
planning, directing, and managing the instruction and training of assigned staff in work 
practices and improved methods and procedures; 
developing and implementing computer applications related to survey work; 
recording and submitting field notes on the type of survey, information required, and 
procedures and equipment used; and 
preparing field books, profiles, and other drawings from field notes and making necessary 
computations. 
The petitioner stated that a candidate for the proposed position must possess a bachelor's degree in surveying 
and related experience. 
The director asked the petitioner to submit a copy of the beneficiary's land surveyor license or a letter from 
the California Board of Professional Engineers and Land Surveyors stating that the beneficiary's position 
does not require a license. 
In response, the petitioner submitted a letter from the California Board of Professional Engineers and Land 
Surveyors stating that the Professional Land Surveyor's Act exempts individuals from licensure if they are 
subordinate to a licensed professional land surveyor or civil engineer authorized to practice land surveying. 
The Board further stated that the job description submitted by the petitioner for the proposed position met the 
WAC 04 253 51497 
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requirement for "Exemption to licensure" under the Land Surveyor's Act. The petitioner also submitted a 
copy of the beneficiary's surveyor's license from New Zealand, and a copy of the Professional Land 
Surveyor's Act, including the provision for licensure exemption. 
The director concluded that the proposed position was not a specialty occupation. The director further 
concluded that the petitioner failed to provide a copy of the petitioner's license with the response to the RFE 
and to mention in the initial petition that the beneficiary would work under the supervision of a licensed land 
surveyor. The director concluded that the petitioner did not provide sufficient detail about the type and 
amount of supervision the beneficiary would have. As such, the director concluded that the petitioner did not 
establish that the beneficiary was qualified to perform the duties of a specialty occupation. 
On appeal, the petitioner submits a copy of its land surveyor license and asserts that the director did not 
request a copy of the license in the WE. The petitioner further asserts that it requires a minimum of a 
bachelor's degree in surveying for the proposed position and that the position is a specialty occupation. 
Upon a thorough review of the record, the AAO concludes that the petitioner has established that its survey 
party chief position is a specialty occupation pursuant to 8 C.F.R. $214.2(h)(4)(iii)(A)(4). 
To determine whether a position qualifies as a specialty occupation, CIS looks beyond the title of the position 
and determines. from a review of the duties of the position and any supporting evidence, whether the position 
actually requires the theoretical and practical application of highly spec~alized knowledge and the attainment 
of a bachelor's degree in a specific field of study as the minimum for entry into the occupation. 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for its 
information about the duties and educational requirements of particular occupations. Based on a thorough 
review of the duties of the proposed position alongside the Handbook's description of surveyors, 
cartographers, photogrammetrists, and surveying technicians, the AAO concludes that the proposed position is 
that of a survey party chief. 
The fourth criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a bachelor's or higher degree. The evidentiary record establishes that the 
beneficiary's specific duties are so specialized and complex that the knowledge required to perform the duties 
is usually associated with the attainment of a bachelor's degree in surveying or a related field. 
The petitioner's informational materials briefly describe its expertise. The petitioner has been in the business 
of land surveymg, planning, and engineering for almost 27 years. It has 54 employees, including a large staff 
of professional engineers and licensed land surveyors. It uses its six Trimble Global Positioning System 
(GPS) receivers for surveys and provides geographic information systems (GIs) software services to its 
clients. The petitioner's staff includes nine registered civil engineers, two petroleum engineers, four design 
drafters, and five licensed land surveyors. The petitioner also employs a substantial support staff to carry out 
land surveys. The petitioner has 55 networked computers and uses a spatial database and a relational database 
as part of its GIs software. 
The Handbook indicates that surveying is an emerging specialty and that employers are increasingly requiring 
bachelor's degrees in surveying or related fields, such as civil engineering or forestry (with courses in 
surveying) : 
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New technology is changing the nature of the work of surveyors and surveying technicians. 
On larger projects, surveyors are increasingly using the Global Positioning System (GPS), a 
satellite system that locates points on the earth to a high degree of precision by using radio 
signals transmitted via satellite. . . . Surveyors must then interpret and check the results 
produced by the new technology. 
. . . 
Most people prepare for a career as a licensed surveyor by combining postsecondary school 
courses in surveying with extensive on-the-job training. However, as technology advances, 
a 4-year college degree is increasingly becoming a pre-requisite. About 50 universities 
now offer 4-year programs leading to a B.S. degree in surveying. Junior and community 
colleges, technical institutes, and vocational schools offerl-, 2-, and 3-year programs for 
both surveying and surveying technology. 
... 
As technologies become more complex, opportunities will be best for surveyors, 
cartographers, and photogrammetrists who have at least a bachelor's degree and strong 
technical skills. . . . New technologies such as GPS and GIs, also may enhance 
employment for surveyors. . . . 
The evidentiary record reveals that the beneficiary must be able to manage a survey party in order to complete 
land surveys. She will need to know how to use new and complex technology such as the petitioner's GPS 
receivers and to interpret the results produced by those receivers and be familiar with GIs software. The 
knowledge to perform the duties of the proposed position is usually associated with the attainment of a 
bachelor's degree in surveying. This position is distinguishable from survey technicians, who assist the party 
chief by adjusting and operating surveying instruments. 
As related in the discussion above, the petitioner has established that, due to the complexity of its duties, the 
proposed position is a specialty occupation under the fourth criterion of 8 C.F.R. §214.2(h)(4)(iii)(A). 
The petition may not be approved however, as the evidence of record does not establish that the beneficiary is 
qualified to perform services in the proffered position in accordance with the regulations at 8 C.F.R. 
$3 214.2(h)(4)(iii)(C) and (D). 
As earlier indicated in this decision, licensure is not an issue in light of the specific facts in this particular 
case. It is also noted that the record establishes that the beneficiary holds a bachelor's degree in surveying 
from a foreign educational institution, the University of Tago in Dunedin, New Zealand. However, the record 
does not contain an evaluation of the U.S. educational equivalency of the beneficiary's foreign education, 
rendered by a reliable credentials evaluation service which specializes in evaluating foreign educational 
credentials, as required by 8 C.F.R. $5 214.2(h)(4)(iii)(D)(3). 
As CIS had not previously addressed the beneficiary's educational qualifications, the petition will be 
remanded for the director to issue a request for additional evidence on whether the beneficiary possesses the 
credentials specified at 8 C.F.R. $3 214.2(h)(4)(iii)(C) and (D). The request should specifically note the 
absence of the aforementioned evaluation, and it should afford the petitioner the opportunity to provide such 
documentation and any other evidence pertinent to the issue of the beneficiary's qualifications under 8 C.F.R. 
§§ 214.2(h)(4)(iii)(C) and (D). The director may also request any other evidence that he may deem necessary. 
The director shall then render a new decision based on the evidence of record as it relates to the regulatory 
WAC 04 253 51497 
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requirements for eligibility. If the new decision is adverse to the petitioner, the director shall certify it to the 
AAO for review. 
As always, the burden of proving elig~bility for the benefit sought remains entirely with the petitioner. Section 
291 ofthe Act, 8 U.S.C. fj 1361. 
ORDER: The director's October 8, 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.