remanded H-1B Case: Rehabilitation

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 1 13 5021 1 Office: CALIFORNIA SERVICE CENTER ~ke: d# 0 a 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)( 1 S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)( 1 S)(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. Wiemann, Director 
Administrative Appeals Office 
WAC 03 113 5021 1 
Page 2 
DISCUSSION: The service center director 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 The director's decision will be withdrawn.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. 
The petitioner is a home health agency that seeks to employ the beneficiary as a rehabilitation specialist. 
The petitioner, therefore, seeks to classify the beneficiary as a nonirnrnigrant 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. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proposed 
position qualifies for classification as a specialty occupation, and that the beneficiary does not qualify to 
perform the duties of the proposed position. 
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; 
(2) the director's two requests for additional evidence (RFE); (3) the petitioner's RFE responses; (4) the 
director's denial letter; and (5) the Form 1-290B and supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
The petitioner's letter of support set forth the following description of the duties of the proposed position: 
In general, the specialist will use [the] rehabilitation program to help people with 
illnesses, disabilities, and other conditions [to] develop and use their available capacity in 
ways that enhance their health, functional abilities, independence, and quality of life, in 
cooperation with physicians, nurses, psychologists, social workers, and physical and 
occupational therapists. Rehabilitation [slpecialists use education and training to 
improve general health and well being. Because the work involves rehabilitative 
services, knowledge in human anatomy, physiology, medical and psychiatric 
terminology, human development, characteristics of illness and disabilities, and the 
concept[s] of inclusion and normalization are essential. Therefore, a bachelor's degree in 
a health major or human service field is the usual requirement for entry into this 
profession. 
[The] [rlehabilitation specialist uses [the] rehabilitation program which includes 
education, training, and activities participation, to help people. Job duties include the 
following: 
Provides individual or group instruction for daily living, communication, orientation, and 
mobility, and operation of medical equipment and machinery. Organizes assessment and 
training activities for clients individually or in groups on daily living, communication, 
orientation and mobility, and other independent living skills. Conducts assessments of 
physical, mental, emotional, and social functioning to determine the individual's needs, 
interest[s], and abilities. Provides oral and written reports of client information in multi- 
disciplinary staff meetings to develop individual program plans for clients. Applies 
remedial instructional techniques to accommodate the unique physical limitations and 
learning abilities of clients with disabilities. Records client performance through 
behavioral observations and accurate recording of standardized performance measures 
such as work quantity and quality, daily living skill inventories, behavioral rating scales, 
skill proficiency in a planned program of skill proficiency. Reviews performance data to 
WAC 03 113 5021 1 
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make recommendations or to suggest changes in the individual rehabilitation program 
plans of clients. Provides feedback on performance to assist clients to achieve 
independent living goals. Applies principles of human behavior and other intervention 
methods to implement instructional plans. 
In response to one of the director's two requests for evidence, the petitioner broke down the percentage of 
time that the beneficiary will spend performing the various tasks as follows: 
Approximately 10 percent of the time the Rehabilitation Specialist will spend on 
collecting and analyzing data to define individual's needs, interest[s], and abilities [sic]. 
Another 50 percent of the time the Rehabilitation Specialist will spend on developing, 
coordinating, and implementing individual plans, instructional programs[,] and supports 
which assist persons with illness or disabilities to live, work, and participate in the 
community[.] [sic] Another 20 percent of the time the Rehabilitation Specialist will 
spend on reviewing and monitoring individual plans for clients and assessing, evaluating, 
and summarizing data and documentation for individual goal development [sic]. Another 
20 percent of the time the Rehabilitation Specialist will spend on drafting reports, 
recommending equipment, materials[,] and supplies to meet individual goals, and 
coordinating the development and monitoring of behavior management and crisis 
intervention plans per individual's goals and time frames [sic]. . . . 
The director denied the petition, likening the duties of the proposed position to those of social and human 
health assistants, positions that do not normally qualify for classification as specialty occupations. 
On appeal, counsel contends that the director erred in denying the petition. Counsel asserts that the duties 
of the proposed position are analogous to those of medical and health services managers. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 1184(i)(l), defines the term "specialty occupation" ilS 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. 5 2 14.2(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 
WAC 03 113 5021 1 
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(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. 
In determining whether a position qualifies as a specialty occupation, Citizenship and Immigration 
Services (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 a body of highly specialized knowledge, and the attainment of a baccalaureate degree in a 
specific specialty as the minimum for entry into the occupation as required by the Act. The AAO 
routinely consults the Department of Labor's Occtlpatioi7ul Outlook Handbook (the Hundbook) for its 
information about the duties and educational requirements of particular occupations. 
In the first RFE, the director likened the duties of the position to those of an occupational therapist, a 
conclusion with which the petitioner disagreed. In the denial, the director likened the duties of the 
proposed position to those of social and human health assistants. On appeal, counsel states that the duties 
of the position in fact mirror those of medical and health services managers. The duties of medical and 
health services managers are set forth in the Handbook as follows: 
Healthcare is a business and, like every other business, it needs good management to 
keep it running smoothly. The occupation, medical and health services manager, 
encompasses all individuals who plan, direct, coordinate, and supervise the delivery of 
healthcare. Medical and health services managers include specialists and generalists. 
Specialists are in charge of specific clinical departments or services, while generalists 
manage or help to manage an entire facility or system. 
'The structure and financing of healthcare is changing rapidly. Future medical and health 
services managers must be prepared to deal with evolving integrated healthcare delivery 
systems, technological innovations, an increasingly complex regulatory environment, 
restructuring of work, and an increased focus on preventive care. They will be called 
upon to improve efficiency in healthcare facilities and the quality of the healthcare 
provided. Increasingly, medical and health services managers will work in organizations 
in which they must optimize efficiency of a variety of interrelated services-for example, 
those ranging from inpatient care to outpatient followup care. 
Large facilities usually have several assistant administrators to aid the top administrator 
and to handle daily decisions. Assistant administrators may direct activities in clinical 
areas such as nursing, surgery, therapy, medical records, or health information. 
(Managers in nonhealth areas, such as administrative services, computer and information 
systems, finance, and human resources, are not included in this statement. For 
information about them, see the statements on management occupations elsewhere in the 
Handbook.) 
In smaller facilities, top administrators handle more of the details of daily operations. For 
example, many nursing home administrators manage personnel, finance, facility 
operations, and admissions, and have a larger role in resident care. 
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Clinical managers have more specific responsibilities than do generalists, and have 
training or experience in a specific clinical area. For example, directors of physical 
therapy are experienced physical therapists, and most health information and medical 
record administrators have a bachelor's degree in health information or medical record 
administration. Clinical managers establish and implement policies, objectives, and 
procedures for their departments; evaluate personnel and work; develop reports and 
budgets; and coordinate activities with other managers. 
In support of the proposition that the duties of the proposed position mirror those of medical and health 
services managers, counsel asserts that "in the mind of the petitioner, the beneficiary's impact is to be 
agency-wide rather than limited to only a few patients." Counsel states the following in the appellate 
brief 
While the beneficiary will spend a portion of his time communicating with patients to 
identify their needs, it will be minimal, comprising only a small portion of his duties. 
The percentage of time he will spend engaged in analyzing a patient's needs is only 10% 
of his total responsibilities. He will spend another 20% of his time reviewing and 
monitoring developed plans for patients. The balance of his time will be spent monitoring 
and evaluating programs, drafting reports on the efficacy of these programs, and 
recommending equipment and supplies to ensure they meet the needs of the petitioner's 
patients. 
However, this assertion conflicts with the petitioner's earlier statements in the record regarding the 
percentage of time to be spent performing the duties of the proposed position. In the first RFE response, 
the petitioner stated that in addition to the thirty percent of the time the beneficiary would spend 
performing the duties accounted for by counsel above, an additional fifty percent of the beneficiary's time 
would be spent developing and coordinating individual plans and instructional programs. The duties cited 
by counsel on appeal as comprising "the balance" of the beneficiary's time (approximately 70%) are 
listed as encompassing only twenty percent in the petitioner's response to the director's RFE and 
therefore conflicts with evidence submitted previously. 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's 
title, its level of authority within the organizational hierarchy, or the associated job responsibilities. The 
petitioner must establish that the position offered to the beneficiary when the petition was filed nierits 
classification within the requested category. Matter oJ'Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. 
Comm. 1978). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to CIS requirements. See Mutter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cnmm. 
1998). The AAO will consider the job duties submitted to the director. 
The AAO has conducted a de novo review of the entire record and finds that the duties of the proposed 
position, as described in the initial filing and elaborated upon in the RFE responses, resemble neither 
those of a social and human health assistant, as found by the director, nor those of a medical and health 
services manager, as asserted by counsel on appeal. Rather, the AAO finds that the duties of the proposed 
position in fact closely resemble those of an occupational therapist. 
The proposed position lacks critical characteristics of a medical and health services manager position. 
While counsel correctly points out the FInnrlhook '.s statement that "a bachelor's degree is adequate for 
some entry-level positions in smaller facilities and at the departmental level within healthcare 
WAC 03 113 50211 
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organizations," the proposed position lacks other characteristics of such positions at smaller facilities. 
For example, while the Handbook does notes that a bachelor's degree (and not a master's degree) would 
be an acceptable degree for an entry-level position at a small facility, it also notes that "[iln srnaller 
facilities, top administrators handle more of the details of daily operations." 
However, the petitioner specifically stated, in the first RFE response, that the beneficiary "will not 
supervise anyone." Thus, it does not appear as though he would "handle more of the details of daily 
operations" as contemplated by the Handbook. 
Also, the AAO is not persuaded by the petitioner's attempt in the first RFE response to distinguish the 
duties of the proposed position from those of an occupational therapist. The petitioner was correct to 
point out that occupational therapists require licensure. However, the issue of licensure pertains to the 
qualifications of the beneficiary to perform the duties of the position, not to whether the position is a 
specialty occupation or not. The duties for the proposed position that were provided in the initial filing 
and RFE response, though worded slightly differently, are similar to those of occupational therapists, as 
discussed in the Handbook: 
Occupational therapists (OTs) help people improve their ability to perform tasks in their 
daily living and working environments. They work with individuals who have conditions 
that are mentally, physically, developmentally, or emotionally disabling. They also help 
them to develop, recover, or maintain daily living and work skills. Occupational 
therapists help clients not only to improve their basic motor functions and reasoning 
abilities, but also to compensate for permanent loss of function. Their goal is to help 
clients have independent, productive, and satisfying lives. 
Occupational therapists assist clients in performing activities of all types, ranging from 
using a computer to caring for daily needs such as dressing, cooking, and eating. Physical 
exercises may be used to increase strength and dexterity, while other activities may be 
chosen to improve visual acuity and the ability to discern patterns. For example, a client 
with short-term memory loss might be encouraged to make lists to aid recall, and a 
person with coordination problems might be assigned exercises to improve hand-eye 
coordination. Occupational therapists also use computer programs to help clients improve 
decisionmaking, abstract-reasoning, problem-solving, and perceptual skills, as well as 
memory, sequencing, and coordination-all of which are important for independent 
living. 
Therapists instruct those with permanent disabilities, such as spinal cord injuries, cerebral 
palsy, or muscular dystrophy, in the use of adaptive equipment, including wheelchairs, 
splints, and aids for eating and dressing. They also design or make special equipment 
needed at home or at work. Therapists develop computer-aided adaptive equipment and 
teach clients with severe limitations how to use that equipment in order to communicate 
better and control various aspects of their environment. 
In that the duties of the proposed position appears closely aligned to those of occupational therapists, the 
AAO next turns to the H~nclbook's discussion of whether the occupation nornlally requires a 
baccalaureate or higher degree, or its equivalent, for entry into the profession. The Handbook reports the 
following educational requirements for those seeking employment as occupational therapists: 
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Currently, a bachelor's degree in occupational therapy is the minimum requirement for 
entry into this field. Beginning in 2007, however, a master's degree or higher will be the 
minimum educational requirement. As a result, students in bachelor's-level programs 
should complete their coursework and fieldwork before 2007. All States, Puerto Rico, 
and the District of Columbia regulate the practice of occupational therapy. To obtain a 
license, applicants must graduate from an accredited educational program and pass a 
national certification examination. 
As such, the position satisfies 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l), that a baccalaureate or hgher degree or its 
equivalent is normally the minimum requirement for entry into the position. The AAO therefore agrees with 
the petitioner's contention that the proposed position qualifies for classification as a specialty occupation. 
The petition may not be approved, however, as the beneficiary does not appear qualified to perform the 
services of the specialty occupation. The record does not reflect that the beneficiary is licensed as an 
occupational therapist. As the director has not addressed this issue, the decision will be withdrawn. The 
petition will be remanded for the director to enter a new decision. The director may afford the petitioner 
reasonable time to provide evidence relevant to the issue of the beneficiary's qualifications for the 
position, as well any other evidence the director may deem necessary. 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 eligbility for the benefit sought rests solely with the petitioner. Section 291 
of the Act, 8 U.S.C. 6 136 1. 
ORDER: The director's April 27, 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.