remanded H-1B Case: Social Services

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
h&@mg data deleted to 
pent ckari~~ anwarranted 
hvasb of personal pri~ry 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 04 08 1 53 164 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 1 2006 
IN RE: 
PETITION: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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 fbrther inquiry must be made to that office. 
a"""7~7 
&Robert P. Wiemann. Chief 
/ 
Administrative ~~&als dfice 
WAC 04 08 1 53 164 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (MO) 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 The director's decision will be withdrawn.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 corporation that operates a skilled nursing and sub-acute facility that seeks to employ the 
beneficiary as a social services and family liaison supervisor. The petitioner, therefore, endeavors to classify 
the beneficiary as a nonirnmigrant worker in a specialty occupation pursuant to section 10 1 (a)(l 5)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 5 llOl(a)(lS)(H)(i)(b). The director denied the 
petition because the evidence does not establish that the petitioner qualifies as a United States employer or 
agent. On appeal, counsel submits a brief and additional documentation. 
The record of proceeding before the MO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The MO 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. 
 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. 
5 2 14.2(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. 
The petitioner is seeking the beneficiary's services as a social services and family liaison supervisor. 
Evidence of the beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; 
the company support letter; and the petitioner's response to the director's request for evidence. According to 
WAC 04 081 53164 
Page 3 
this evidence, the beneficiary would perform duties that entail: helping patients and family through individual 
or group conferences to understand, accept and follow medical recommendations upon intake; serving as 
advocate for patients who do not have a family member or a responsible party representing them; counseling 
independent and alert patients, as to their rights andlor other needs they may have (40% of time); serving as 
family liaison with the hospital staff; aiding in solving problems and accomplishing care plan goals; assisting 
with smooth transition upon admission and intake (10% of time); assisting families and the administration in 
finding the appropriate framework for continued post-release care (15% of time); working in collaboration 
with health care team to inform them of significant underlying social factors that affect each patient under 
their care (10% of time); liaisoning with adult protective services, ombudsman, and other social service 
agencies upon admission or at time of crisis (as needed); training and supporting all staff on social services 
regulations and procedures upon intake and release (10% of time); and participating in team intakeladmission 
of patients (15% of time). The petitioner stated that the position requires a bachelor's degree in social work, 
psychology or other behavioral sciences with relevant coursework. 
On or about May 1 1, 2004, the director issued a request for evidence that the proffered position is a specialty 
occupation. The petitioner responded with a detailed explanation asserting that the proffered position is a 
specialty occupation. The petitioner stated that the position is one of social services in a skilled nursing 
facility and not social work. On or about August 27, 2004, the director issued a second request for evidence 
for information regarding the beneficiary's qualifications. The director requested evidence to substantiate the 
information provided on the Form 1-129. The director requested copies of the Form DE-6; quarterly wage 
reports; petitioner's organizational chart, including all the divisions of the company and to identify the 
proffered position in the chart; federal income tax returns for the year 2003, certified by the internal revenue 
service; business licenses; company profile; photographs of business premises; lease agreement; floor plan; 
state income tax returns; Form 941 quarterly wage reports; and a payroll summary. 
In response, the petitioner provided a company brochure, photographs of the nursing facility, and copies of 
the beneficiary's transcripts, the petitioner's organizational chart, the petitioner's business license, the 
petitioner's federal income tax returns for 2001, 2002, and 2003; the petitioner's mortgage statement; the 
petitioner's floor plan; the petitioner's quarterly wage report; the petitioner's payroll summary indicating 372 
employees; and information establishing the beneficiary's previous H-1B status. 
petitioner provided misrepresentation through the inconsistent and conflicting record. The director found that 
the reliability of all of the evidence provided with the present petition is in question and is in sufficient to 
establish eligibility for the benefit sought. The director noted that the petitioner was requested to submit 
proof of business conducted. The director found that the petitioner did not submit all of the requested 
evidence and thereby precluded the director from verifying material information on the Form 1-129 and that 
the petitioner "engaged in the business of investment firm." 
On appeal counsel asserts that the record is true and correct and that the documents submitted into the record 
organizational relationship between these two companies. Counsel notes that the director stated, "Therefore, 
WAC 04 081 53164 
Page 4 
without evidence to show that the petitioner engages in the business of investment firm, the beneficiary will 
be entering the United States to be employed in other than a specialty occupation." 
Counsel also refers to a memorandum issued by the CIS Associate Director for Operations as support of his 
assertions that the proffered position is a specialty occupation and that the beneficiary is qualified to perform 
the services of a specialty occupation because the beneficiary had previously been approved for H-1B status. 
This record of proceeding does not, however, contain all of the supporting evidence submitted to the service 
center in the prior case. In the absence of all of the corroborating evidence contained in that record of 
proceeding, the documents submitted by counsel are not sufficient to enable the AAO to determine whether 
the proffered position and the beneficiary's qualifications as established in the prior case were similar to the 
position in the instant petition. 
Counsel's interpretation of the significance of the approval of the prior petition filed by another petitioner on 
behalf of this beneficiary is incorrect. Each nonimmigrant petition is a separate proceeding with a separate 
record. See 8 C.F.R. 3 103.8(d). In making a determination of statutory eligibility, CIS is limited to the 
information contained in the record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Although the AAO may 
attempt to hypothesize as to whether the prior case was similar to the proffered position or was approved in 
error, no such determination may be made without review of the original record in its entirety. CIS is not 
required to approve petitions where eligibility has not been demonstrated, merely because of prior approvals 
that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). 
As discussed below, the AAO finds that the petitioner has overcome the grounds on which the director based 
the denial. For this reason, the director's will be withdrawn. However, the petition shall be remanded to the 
director for his adjudication of the merits of this petition. 
The AAO first turns to the question as to whether the record of proceeding contains sufficient reliable 
evidence that the petitioner is a United States employer that would actually employ the beneficiary. 
Pursuant to 8 C.F.R. 3 214.2@)(4)(ii), United States employer means a person, firm, corporation, contractor, or 
other association, or organization in the United States which: 
(I) 
 Engages a person to work within the United States; 
(2) 
 Has an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work 
of any such employee; and 
(3) 
 Has an Internal Revenue Service Tax identification number. 
On appeal, counsel refers to information that was previously provided to the director in response to the 
a business license tax certificate for 
Colton CA 92324; the Form 1120 U.S. 
Return for 
 and Subsidiaries for tax year 2001; the Form 7004 Application for 
Automatic Extension of Time to File Corporation Income Tax Return for tax year 2001 which includes the 
WAC 04 081 53164 
Page 5 
affiliated group had individual employer ID numbers and were listed at Interwest 
address of Fort Worth, Texas. The 
Affiliations Schedule for the tax year ending December 3 1, 2002 listing 
Inc. as a subsidiarv cornoration. The ~etitioner submitted a co~v of note 
1 1, 
for 
 'ndicating that the company operates an acute care facility in Colton, 
California. 
ined that the petitioner is a 
which is a wholly owned 
e an employer pursuant to 
rmation on the Form 1-129 
are consistent and indicative that the petitioner would be an employer of the beneficiary if the petition is granted. 
Therefore, the director's decision shall be withdrawn. 
However, the petitioner may still not be approved at this time. The matter will be remanded for the entry of a 
new decision addressing the merits of the petition, that is, as to whether the proffered position is a specialty 
occupation and, if so, whether the beneficiary is qualified to serve therein. The director may afford the 
petitioner reasonable time to provide evidence pertinent to the issue of whether the proffered position is a 
specialty occupation and whether the beneficiary is qualified to perform the duties of the specialty occupation. 
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 eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: 
 The director's December 10, 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.