remanded H-1B Case: Rehabilitation Counseling

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 10, 2024 In Re: 32566490 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(B), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application of 
a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum for entry into the position. 
The Director of the California Service Center denied the petition, concluding the record did not 
establish the Petitioner's proffered job qualified as a specialty occupation under section 
10l(a)(15)(H)(i)(b) of the Act and the Department of Labor (DOL) certified labor condition 
application (LCA) did not correspond to the Petitioner's proffered job. The matter is now before us 
on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
"Specialty Occupation" is defined as an occupation that requires: (A) the 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. See section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered 
position must also meet one of the following criteria to qualify as a specialty occupation: 
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. 
USCIS analyzes the employer's prior practice, as well as the industry norm for parallel positions, to 
assure that a petitioner's requirements do not merely state a degree requirement or its equivalent in a 
specific specialty when such a degree is not actually required to perform the proffered job duties. 
See Matter of Caron International, Inc., 191 I&N Dec. 791, 793-794 (BIA 1988) The burden of 
proof to establish eligibility under the statute and regulation is squarely a petitioner's alone. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 145 (1st Cir. 2007) ("The burden of proving that a particular 
position comes within this taxonomy (and thus qualifies as a specialty occupation) is on the 
applicant."). 
Moreover, job title or broad occupational category alone does not determine whether a particular job 
is a specialty occupation under the regulations and statute. The nature of a petitioner's business 
operations along with the specific duties of the proffered job are also considered. We must evaluate 
the employment of the individual and determine whether the position qualifies as a specialty 
occupation. See Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). So, a petitioner's self-imposed 
requirements are not as critical as whether the nature of the offered position requires the application 
of a theoretical and practical body of knowledge gained from earning the required baccalaureate or 
higher degree in the specific specialty required to accomplish the duties of the job. 
The statute and regulations must be read together to ensure the proffered position meets the definition 
of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statute as a whole is preferred); 
see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations separately 
could lead to scenarios where a petitioner satisfies a regulatory factor, but not the definition of 
specialty occupation contained in the statute. See Defensor, 201 F.3d at 387. The regulatory criteria 
read together with the statute gives effect to the statutory intent. See Temporary Alien Workers 
Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 
2, 1991). 
So, we construe the term "degree" in 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate 
or higher degree or its equivalent, but one in a specific specialty that is directly related to the proffered 
position supporting the statutory definition of specialty occupation or its equivalent. See Royal Siam 
Corp., 484 F.3d at 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). USCIS' 
application of this standard has resulted in the orderly approval of H-lB petitions for engineers, 
certified public accountants, information technology professionals, and other occupations 
commensurate with what Congress intended when it created the H-lB category. 
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II. ANALYSIS 
We conclude that a remand is warranted in this matter. The 
Petitioner seeks to employ the Beneficiary 
as a habilitation counselor. It submitted a labor condition application (LCA) certified for a position in 
the Occupational Information Network (O*NET) Rehabilitation Counselor standard occupational 
category (SOC) 21-1015. 00. The Petitioner stated the position required a bachelor's degree or 
equivalent in psychology, sociology, social work, education, or related field or equivalent. The 
Director issued a request for evidence (RFE) because "the job duties, as described, [ did] not appear to 
be that of a rehabilitation counselor" because the job duties were "general in nature and [ did] not 
sufficiently describe the substantive nature of the ... job duties." For the below reasons, we do not 
agree with the Director, withdraw their decision, and remand this matter for them to enter a new 
decision consistent with the following analysis. 
Upon de novo review we conclude the relevant evidence in the record sufficiently described the job 
duties with enough specificity to establish that the proffered job duties appear to be those of a 
rehabilitation counselor. So, we depart from the Director's conclusion to the contrary. 1 The 
Petitioner's response to the RFE contained a letter from I I immigration specialist/ic, 
providing additional context to the proffered job duties. Specifically, the Petitioner elaborated on the 
proffered habilitation counselor job duties by providing a detailed narrative describing the objectives 
of the duties the Petitioner's habilitation counselor would perform. letter 
substantively described the nature of the habilitation counselor's duties as "responsible for 
rehabilitating" people with mental and physical disabilities to "a state where they can move into less 
restrictive residential or day program and/or integrate back into the community" by "teaching them 
skills to overcome functional aspects of their disabilities." The Petitioner explained that the 
habilitation counselor's work is "facilitated through a multifaceted approach that integrates Devereux 
Positive Behavioral Interventions (D-PBIS) Lesson Plans and a variety of assessments" emphasizing 
"skill acquisition across essential life domains, such as self-medication, hygiene, recreation, and 
safety." Moreover, I Iletter specifically and sufficiently expressed that the habilitation 
counselor was a "part of a multidisciplinary team" collaborating on assessment and comprehension of 
individual's progress, challenges, and successes in furtherance of the development of individualized 
treatment plans and fostering a therapeutic environment taking into account development of 
therapeutic goals and holistic rehabilitation. I I letter provided the context and 
categorization absent from the Petitioner's initial submission such that it became apparent the 
habilitation counselor's duties would "maximize the independence and employability of persons 
coping with personal, social, and vocational difficulties," "coordinate activities for residents of care 
and treatment facilities," and "assess client needs and design and implement rehabilitation programs" 
fitting patient "aptitudes, education levels, physical abilities, and career goals." In sum, 
1 We also note our disagreement with the Director's citation to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) for the proposition that 
"[g]enerally, USCTS considers three years of experience as equivalent to one year of education." The Director's application 
of this rule when evaluating the specialty occupation nature of the Petitioner's proffered habilitation counselor position is 
misplaced. This regulation does not create an equivalency rule for work experience to education; it is a delegated authority 
to USCTS to make equivalency detenninations in the context of evaluating the qualifications of individual beneficiaries of 
H-IB petitions. Moreover, it is a calculation for determining a beneficiary's qualification to perform the duties of a 
specialty occupation only after it has already been determined that a specialty occupation exists. In other words, the 8 
C.F.R. § 2 l 4.2(h)( 4 )(iii)(D)(5) is not used when calculating whether or not a position is a specialty occupation. 
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__ letter is material, relevant, and probative evidence and contains sufficient details to 
persuasively categorize the Petitioner's proffered habilitation counselor position as being in fact 
located within the SOC category for rehabilitation counselors. The Director's decision will therefore 
be withdrawn, and the matter remanded for further action, so that the Director may conduct a first-line 
adjudication of that evidence. 
As the Director conducts that first-line adjudication, they may also wish to consider the following 
concerns we have identified with respect to the Petitioner's minimum educational requirements for 
entry into the proffered habilitation counselor position. The Petitioner's minimum educational 
requirement for entry into the proffered habilitation counselor position is a bachelor's degree in 
psychology, sociology, social work, education, or a related field, or the equivalent. Whilst there is no 
requirement in the statute for the required education to consist of one specific degree or major, there 
must be a close relation between the required specialized studies to constitute a common "specialty" 
and that "specialty" must be related to the duties of the position as supported by the case law cited by 
the Petitioner in its appeal. 2 When a petitioner would accept a bachelor's degree from a wide variety 
of seemingly unconnected fields, it cannot establish that the fields constitute a "specialty" if it does 
not establish how each accepted and specific field of study is directly related to each another and to 
the duties and responsibilities of the proffered position. We interpret the statutory "the" and the 
regulatory "a" to mean a singular specialty. But we do not so narrowly interpret the statute and 
regulation such that multiple closely related fields of study would not constitute a specialty to perform 
the duties of a related specialty occupation. In general, a minimum of a bachelor's or higher degree 
in more than one specialty is recognized as satisfying the "degree in the specific specialty ( or its 
equivalent)" requirement of section 2 l 4(i)(l )(B) of the Act provided the specialties are closely related 
such that they constitute a common specialty required to perform the duties of the position. If they 
constitute a common specialty, then the required "body of highly specialized knowledge" would 
essentially be the same. If the required degree fields do not constitute a common specialty, a minimum 
entry requirement of a degree in disparate fields would not meet the statutory requirement that the 
degree be "in the specific specialty ( or its equivalent)." A minimum entry requirement that did include 
disparate fields of study, such as philosophy and engineering for example, would require the Petitioner 
to establish how each field is directly related to all of the duties and responsibilities of the particular 
position. Section 214(i)(l)(B) of the Act (emphasis added). Specifically, the Director may choose to 
2 The Petitioner's assertion that case law supports a conclusion that a wide range of degrees can constitute a specialty 
required to perform the duties of a specialty occupation is not persuasive. The court's decision in Residential Finance 
Co1poration v. U.S. Citizenship & Immigration Servs., 839 F.Supp.2d 985 (S.D. Ohio 2012) does not stand for the 
proposition that a wide variety of degrees can constitute a specialty required to perform the duties of a specialty occupation. 
Quite the opposite, Residential Finance found for the Plaintiff only after determining that the Plaintiff had established its 
minimum requirements capture the necessity of a baccalaureate degree in a specialized course of study in a field related to 
the proffered job's duties as a minimum. Residential Finance Corporation, 839 F.Supp.2d at 996. In other words, the 
court in Residential Finance did not state that a Petitioner can cobble any grouping of degree fields and call it a specialty, 
as the Petitioner seems to imply. To the contrary, the plaintiff in Residential Finance prevailed because the court 
determined that the plaintiff's grouping of degree fields was a specialty. The foundational principle leading to the holding 
in Residential Finance is also present in several other cases, including cases the agency lost on other grounds. In Relx v. 
Baran, 397 F.Supp.3d 41 (D.D.C. 2019), the court determined that a specialty occupation existed only after determining 
that the occupation required a specialized course of study the plaintiff had earned. Relx, 397 F.Supp.3d at 55. In CARE v. 
Nielsen, 461 F. Supp.3d 1289 (N.D. Ga. 2020) the court stated that most occupations in the proffered job's occupational 
classification require a bachelor's degree as a minimum educational requirement for entry but only after recognizing that 
the statute and regulation must be read together to require a baccalaureate or higher education in a specific specialty. CARE, 
461 F. Supp.3d at 1304. 
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I 
evaluate whether the expert opinion the Petitioner submitted into the record prepared by ___
Ifounder and principal consultant at ______ supports the relation of the degree 
fields included in the Petitioner's educational requirement to one another and the duties of the 
proffered job such that they constitute a specialty required to perform the proffered job's duties. 
The Petitioner also submitted several advertisements from purportedly parallel positions at supposedly 
similar organization to support its assertion that its proffered rehabilitation counselor position is a 
specialty occupation. The advertisements described a constellation of minimum requirements in a 
variety of educational disciplines, including a seeming catchall "human services" field. The record 
also contains a list of"approved human services degrees" submitted in response to the Director's RFE. 
That list is populated by diverse fields including anthropology, criminal justice, nutrition, and 
divinity/religion/theology. This seemingly undercuts the Petitioner's assertion that its proffered 
rehabilitation counselor position is a specialty occupation because the knowledge required to perform 
the duties of a position could potentially be gained from a wide and disparate range of degree fields. 
But the Petitioner's educational requirements for entry into the proffered position makes no mention 
of "human services" as a field providing the body of theoretical and practical knowledge composing 
a specialty required to perform the duties of the proffered habilitation counselor. On remand, the 
Director may opt to examine this seeming inconsistency to ascertain whether the Petitioner's assertions 
and the evidence in the record expands its stated minimum requirements into disparate disciplines 
beyond the degree fields it identified. 
III. CONCLUSION 
The Director's decision is hereby withdrawn, and the 
matter is remanded for further action. The record 
should be further developed to evaluate whether the Petitioner's proffered job meets the requirements 
of the statute at section 214(i)(l) of the Act and at least one of the criteria contained at 8 C.F.R. § 
214.2(h)(4)(iii)(A) as a specialty occupation consistent with the foregoing legal and factual analysis. 
Specifically, the Director should conduct a first-line review of the above-referenced evidence 
regarding the Petitioner's proffered job duties. And as they do so, the Director may also wish to 
consider the additional questions we identified above. We express no opinion regarding this petition's 
ultimate disposition. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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