remanded H-1B Case: Law

U.S. Citizenship 
and Immigration 
Services 
In Re: 8659923 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 17, 2020 
The Petitioner , an international law firm, seeks to temporarily employ the Beneficiary as a "foreign 
exchange professional" under the H-lB nonimrnigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b ), 8 U.S.C. § 110l(a)(15)(H)(i)(b ). 
The Director of the California Service Center denied the petition, concluding that the record does not 
establish that the Beneficiary possesses the appropriate license to practice in the selected occupational 
category or that the Beneficiary is exempt from such licensure requirements . On appeal , the Petitioner 
asserts that the Director erred in the decision . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe , 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review , we conclude that a remand is warranted in this case because the Director's 
decision is insufficient for review . 
I. LEGAL FRAMEWORK 
The statutory and regulatory framework that we must apply in our consideration of the evidence of the 
Beneficiary's qualification to serve in a specialty occupation follows below . 
Section 214(i)(2) of the Act, 8 U.S .C. § 1184(i)(2), states that an individual applying for classification 
as an H-lB nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation , 
(B) completion of the degree described in paragraph (l)(B) for the occupation , or 
(C) (i) experience in the specialty equivalent to the completion of such degree , and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(J) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate 
or higher degree required by the specialty occupation from an accredited college 
or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
In addition, 8 C.F.R. § 214.2(h)(4)(v) states: 
(A) General. If an occupation requires a state or local license for an individual to 
fully perform the duties of the occupation, an alien ( except an H-1 C nurse) 
seeking H classification in that occupation must have that license prior to 
approval of the petition to be found qualified to enter the United States and 
immediately engage in employment in the occupation. 
(B) Temporary licensure. If a temporary license is available and the alien is allowed 
to perfmm the duties of the occupation without a pe1manent license, the director 
shall examine the nature of the duties, the level at which the duties are 
performed, the degree of supervision received, and any limitations placed on 
the alien. If an analysis of the facts demonstrates that the alien under supervision 
is authorized to fully perform the duties of the occupation, H classification may 
be granted. 
(C) Duties without licensure. 
(1) In certain occupations which generally require licensure, a state may 
allow an individual to fully practice the occupation under the 
supervision of licensed senior or supervisory personnel in that 
occupation. In such cases, USCIS shall examine the nature of the duties 
and the level at which they are performed, as well as evidence provided 
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by the petitioner as to the identity, physical location, and credentials of 
the individual(s) who will supervise the alien, and evidence that the 
petitioner is complying with state requirements. If the facts demonstrate 
that the alien under supervision could fully perform the duties of the 
occupation, H classification may be granted. 
(2) An H-IB petition filed on behalf of an alien who does not have a valid 
state or local license, where a license is otherwise required to fully 
perform the duties in that occupation, may be approved for a period of 
up to 1 year if: 
(i) The license would otherwise be issued provided the alien was in 
possession of a valid Social Security number, was authorized for 
employment in the United States, or met a similar technical 
requirement; and 
(ii) The petitioner demonstrates, through evidence from the state or 
local licensing authority, that the only obstacle to the issuance 
of a license to the beneficiary is the lack of a Social Security 
number, a lack of employment authorization in the United 
States, or a failure to meet a similar technical requirement that 
precludes the issuance of the license to an individual who is not 
yet in H-lB status. The petitioner must demonstrate that the 
alien is fully qualified to receive the state or local license in all 
other respects, meaning that all educational, training, 
experience, and other substantive requirements have been met. 
The alien must have filed an application for the license in 
accordance with applicable state and local rules and procedures, 
provided that state or local rules or procedures do not prohibit 
the alien from filing the license application without provision of 
a Social Security number or proof of employment authorization 
or without meeting a similar technical requirement. 
(3) An H-1 B petition filed on behalf of an alien who has been previously 
accorded H-lB classification under paragraph (h)(4)(v)(C)(2) of this 
section may not be approved unless the petitioner demonstrates that the 
alien has obtained the required license, is seeking to employ the alien in 
a position requiring a different license, or the alien will be employed in 
that occupation in a different location which does not require a state or 
local license to fully perform the duties of the occupation. 
Therefore, to qualify a beneficiary for classification as an H-lB nonimmigrant worker under the Act, 
the petitioner must establish that the beneficiary possesses the requisite license or, if none is required, 
that the beneficiary has completed a degree in the specialty that the occupation requires. Alternatively, 
if a license is not required and if the beneficiary does not possess the required U.S. degree or its foreign 
degree equivalent, the petitioner must show that the beneficiary possesses both (I) education, 
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specialized training, and/or progressively responsible experience in the specialty equivalent to the 
completion of such degree, and (2) recognition of expertise in the specialty through progressively 
responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results ofrecognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program 
on Noncollegiate Sponsored Instruction (PONS!); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
( 4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
( 5) A dete1mination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience .... 
II. THE PROFFERED POSITION 
The Petitioner stated in its H-1 B petition that it will deploy the Beneficiary to its New York office. 
On the labor condition application (LCA) 1 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational categmy of "Lawyers" cmresponding to the 
Standard Occupational Classification code 23-1011. 2 The Petitioner stated that the Beneficiary will 
1 While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's 
content corresponds with the H-IB petition. See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is 
supported by an LCA which corresponds with the petition ... "). 
2 The Handbook may be accessed at https://www.bls.gov. Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Lawyers. https://www.bls.gov/ooh/legal/lawyers.htm?view_ full#tab-4_(last visited Jul. 16, 2020). We 
do not, however. maintain that the Handbook is the exclusive source ofrelevant information. The occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and we regularly review the Handbook on the duties and educational requirements of the wide vaiiety of 
occupations that it addresses. Nevertheless, to satisfy the first criterion, the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would n01mally have a minimum. specialty 
degree requirement, or its equivalent. for entry. 
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be employed as a "foreign exchange professional" on a team specializing in corporate finance for Latin 
America, a position which requires at least a juris doctorate degree or equivalent. 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Director may wish to closely examine 
and clarify the Petitioner's stated minimum requirements for the position. Specifically, the Petitioner 
stated in its initial support letter that the Beneficiary "will not practice law in the [S]tate of New York, 
but instead will draw on her legal background" to carry out the duties of the position. In response to 
the Director's request for evidence (RFE), the Petitioner stated that it "does not require a license to 
practice law for this position, and our Foreign Exchange Professionals are not expected become 
licensed in the U.S. as they are not practicing law in the U.S." Furthermore, the Petitioner stated that 
the Beneficiary is "a licensed attorney in Brazil" and that she "will not be advising clients on matters 
relating to U.S. law and will not be practicing or holding herself out to the public as an attorney-at­
law." 
These statements suggest that qualifications to enter into the proffered position do not include a law 
license and that the Petitioner does require the Beneficiary to obtain admission to a state bar in order 
to perform the duties of the proffered position. Rather, the duties of the position involve consulting, 
examining, and analyzing issues on corporate investments and financial transactions in relation to 
Brazilian law. As part of a legal team within the Petitioner's firm, the Beneficiary will "assist [the 
Petitioner's] U.S.-trained attorneys." The Petitioner states that its duties require leveraging a legal 
background, legal training, as well as specialized knowledge of law, but that a license to practice law 
is not required. 
The regulations at 8 C.F.R. § 214.2(h)(4)(v) require a license for an individual to fully perform the 
duties of the occupation. Given the Petitioner's statements noted above, the Director may wish to 
clarify whether the Petitioner requires the Beneficiary to fully perform the duties of the occupation as 
a licensed attorney or whether the position requires specialized knowledge of the law without the 
necessity of a law license. 
On appea 1 thP: PP:titionP:r provides information via an opinion letter offered byl I Professor 
of Law a~~-----~lof Business and another by I I Professor of the Practice at 
~--~ILaw School. In addition to this, the Petitioner provides additional specific information 
concerning the licensed attorneys who will directly oversee and supervise the Beneficiary's day-to­
day activities. 3 
In most cases, our decision will be limited to the evidence in the record at the time of the unfavorable 
decision, as the appellate regulations have never explicitly allowed for the submission of evidence 
with regular appeals. Accordingly, when new evidence is submitted with an appeal, we will apply 
both Matter of Soriano 4and Matter of Obaigbena 5to determine whether we will consider the evidence 
3 We acknowledge. but do not specifically discuss all evidence submitted on appeal, including the articles concerning New 
York consolidated laws, Delaware clerkships, as well as information concerning the partners at the Petitioner's firm and 
an organizational chart. 
4 Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
5 Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
5 
in our decision. In applying the framework of those cases to the matter at hand, we conclude that the 
RFE provided notice to the Petitioner that an evidentiary deficiency prevented the Director from 
making a determination on: (1) whether the Beneficiary obtained the license required by the 
occupation; (2) whether the Beneficiary is exempt from the requirement; and (3) whether the 
Beneficiary would fully practice the occupation without a license (which would require further 
information concerning supervision). 
The Petitioner had a reasonable opportunity to respond to the deficiency through the RFE process and, 
in fact, did provide an RFE response. Furthermore, we conclude that had the Petitioner wanted to, it 
reasonably could have solicited the aforementioned opinion letters prior to the appeal and submitted 
them within its RFE response. We further conclude that the Petitioner also reasonably could have 
obtained and provided in its RFE response the appropriate documentation with which to establish 
eligibility under 8 C.F.R. § 214.2(h)(4)(v). As such, the AAO is not required to consider this additional 
evidence submitted on appeal. Nevertheless, we conclude that the Director is the more appropriate 
party to consider the impact of the evidence on eligibility for the benefit sought. 
Specifically, the Director may wish to consider whether the opinions offered byl I 
contradict the Petitioner's stated requirements for the proffered position. I Is opinion 
of the requirements of the position suggest that the Beneficiary will be expected to sit for a bar exam 
and obtain a law license, as well as that the requirements for the position at the time of hiring are 
different than those which will be required later. To illustrate,! I's letter states that 
candidates for the proffered position are hired with the expectation and understanding that they will 
eventually gain admission to a U.S. state bar within a reasonable period after commencement of 
employment. His letter is replete with statements that indicate the qualifications at the time of hiring 
do not require a law license, but that such qualifications will change at a future time in order for the 
candidate to "advance" or "ascend" to the role of a fully licensed attorney. It appears thatl I 
I I considers the proffered position to initially be separate and distinct from that of a licensed 
attorney, but that it is the intent of the Petitioner that at some point after the hiring phase, the proffered 
position will change once the Beneficiary passes a bar examination and becomes a U.S.-licensed 
attorney. 6 
The Petitioner and I 1 I hoth seem to agree that in order to compete for new talent, it is 
industry practice for top tier firms to extend offers to law students prior to their attainment of a juris 
doctorate degree or LLM degree, as well as that recent law graduates may be hired prior to admission 
to the bar. While this may be ttue, the Director may wish to explore whether this industry practice is 
applicable in this particular case. The record reflects that after five years of study in Brazil, the 
6 8 C.F .R. § 103 .2(b )(1) requires that a petitioner establish that all eligibility requirements for the immigration benefit have 
been satisfied from the time of the filing and continuing through adjudication. Therefore, a visa petition may not be 
approved at a future date after the Petitioner or the Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp .. 17 l&N Dec. 248 (Reg'l Comm'r 1978). As such, eligibility for the benefit sought must be assessed 
and weighed based on the facts as they existed at the time the instant petition was filed. In order for a petitioner to comply 
with 8 C.F.R. § 103.2(6)(1) and USCIS to perform its regulatory duties under 20 C.F.R. § 655.705(6), a petitioner must 
file an amended or new petition, along with a new LCA certified by DOL, in order to capture any material changes in 
terms or conditions of employment or the beneficiary's eligibility. 
6 
Beneficiary graduated with a degree entitled "Bachelor of Laws" 7 and that she also graduated with a 
U.S. master of law degree in June 2017. This petition was filed in April 2019 with a requested 
employment period of October 2019 to August 2022. As such, the two-year gap between the 
Beneficiary's graduation and the filing of the petition may suggest that at the time of such filing, the 
Beneficiary was not a recent graduate in the manner in which the claimed industry practices are 
conducted. 
To supfort the argument that the Beneficiary may work as lawyer in the proffered position without a 
license I references a New York state law provision which he contends expressly 
contemplates that law graduates may be employed as non-attorney legal professionals prior to 
admission to the bar. g 
The citation states that among the various requirements for being admitted to the New York state bar, 
a candidate must possess the "skills and values necessary to provide effective, ethical and responsible 
legal services." One way of meeting this paiiicular requirement is through a six-month apprenticeship 
whereby an unlicensed law graduate or LLM student may perform legal research, writing, and related 
legal work under the supervision of a licensed attorney. I luses this provision to 
suggest that because New York law permits this type of work pursuant to an apprenticeship that the 
Beneficiary's work in the proffered position without a license is therefore not contraindicated. 
The Director may wish to explore the applicability of this state law provision in the matter at hand. 
The provision is intended to codify the various ways that a person may meet one of several 
requirements to be admitted to the New York bar; its purpose is not to offer an employment loophole 
or a grace period for licensure requirements. In light of this information, we again draw the Director's 
attention to the above-stated industry practice concerning recent graduates and law students in the 
process of completing their studies, as well as the petition filing date, and the requested employment 
period. 
IV. CONCLUSION 
The matter will be remanded to the Director to clarify: (1) the Petitioner's minimum requirements for 
the position; (2) whether the Beneficiary will be expected to fully perform the duties of a lawyer such 
that a license is required; and (3) if a license is required, whether the Petitioner has established the 
Beneficiary's eligibility under any of the 8 C.F.R. § 214.2(h)(4)(v) provisions. 
The Director may request any additional evidence considered pe1iinent to the new dete1mination and 
any other issue. As such, we express no opinion regarding the ultimate resolution of this case on 
remand. 
7 The Director may also wish to request a credential equivalency evaluation for this foreign degree. The record contains a 
translation of the Beneficiary's transc1ipt, but the U.S. academic equivalency of the Beneficiary's foreign degree has not 
1
eeu establ i sb ed 
~ I cites 22 NYCRR § 520.18, which can be accessed at http://www.nycourts.gov/ctapps/520rules 1 0.htm 
(last visited Jul. 16, 2020) 
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ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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