remanded H-1B Case: Special Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 14,2017 
. 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an adult day program, seeks to temporarily employ the Beneficiary as a "special 
education teacher" under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the Petitioner had not 
demonstrated that th;e Beneficiary is qualified to perform services in a specialty occupation. 
On appeal, the Petitioner submits a letter and asserts that· the Director's conclusion was erroneous, 
noting that the Beneficiary is qualified to perform the duties of the proffered position by virtue of her 
foreign degree which is equivalent to a U.S. bachelor's degree in elementary education. 
We conduct de novo review on appeal, and note that a beneficiary's credentials for the proffered 
position are relevant only when we find the position to be a specialty occupation. 1 As we will 
discuss below, the record of proceedings does not establish that the proffered position qualifies as a 
specialty occupation. Thus, we will remand the, matter to the Director for further review of the 
record and to issue a new decision. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm 'r 1988) ("The facts of a beneficiary's background 
only come at issue after it is found that the position in whiCh the petitioner intends to employ him falls within [a 
specialty occupation]. "). 
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Matter of 
(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. 
The regulation at 8 9.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition , but adds a 
non-exhaustive list of fields of endeavor. In addition , the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation : 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistentl y interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In its letter of support, the Petitioner stated that it "operates an Adult Day Program that provides training 
program[s] for developmentally disabled adult consumers/students." The Petitioner claimed that the 
· Beneficiary will teach developmentally disabled adults between the ages of 18 and 59, and provided the 
following overview of the duties ofthe proffered position: 
• Develop and maintain programs for self help and self care skills; develop and 
implement the program to assist the consumers/students with the ability to 
interact with others, making one's needs known and responds to instructions; 
oversee the direct care staff in the implementation of the skill development 
program, as well as the program budget, 
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Matter of, 
TIME TO BE SPENT: 15% 
• Develop and implement a program for consumers/students' self advocacy and 
employment skills; develop and implement a program pertaining to community 
integration skills such as accessing community services; provide leadership in 
module making and design for skills training for consumers /students' business 
development program ; 
TIME TO BE SPENT: 15% 
• Develop behavior management techniques to help improve behaviors of the 
consumers/students; participate in module development and implementation for 
each client's behavioral development , necessary for day program management. 
[D]evelop a program to improve the consumers/students social and recreational 
skills; 
TIME TO BE SPENT: 15% 
• Develop and Implement Individual Program Plan curricula; provide 
individualized instructions for both the consumers and for the staff members 
who directly care for them; directly deliver individual and group learning 
experience to assist each consumer/student served in obtaining his I her IPP 
objective. 
TIME TO BE SPENT: 30% 
• Gather daily data, consolidate and analyze the data for each client to determine 
and facilitate the appropriate level of services necessary for each individual's 
social, mental and intellectual needs; participate in consumer/student's 
assessment, planning and evaluation process. 
TIME TO BE SPENT: 15% 
• Coordinate progress with physicians, psychologist , parents , community care 
workers etc.; assist in the development of detailed patient plans ; assist in pre­
admission evaluations of prospective clients to determine the level of ability and 
determine interest in ability to participate in the education and skill development 
programs. 
TIME TO BE SPENT: 10% 
Regarding the educational requirements for the proffered position , the Petitioner stated that "a 
Bachelor 's degree with concentration in Education, or social work or related field is required." 
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Matter of. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation? 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 3 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.4 
On the labor condition application (LCA)5 submitted in support of the H-IB petition, the Petitioner 
designated the proffered position under the occupational category "Special Education Teachers, All 
Other," corresponding to the Standard Occupational Classification code 25-2059.6 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we . may not discuss every document submitted, we have reviewed and 
considered each one. 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov /ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position , and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidenc~ to support a finding that its particular position 
would normally have a minimum, specialty degree requirement , or its equivalent, for entry. 
5 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an' H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 2015). 
6 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding ofthe occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. 'Nov. 2009), available at 
http:/
/flcdatacenter .com/download/NPWHC _ Guidance_Revised _ II_ 2009.pd( A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education , and skill 
requirements of the Petitioner's job opportunity . /d. 
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Matter of 
Preliminarily, we note that the Director found the proffered position akin to that of a special 
education teacher, and concluded that a degree in special education was required to perform the 
duties of such a position. The Director relied on the 2015-2016 edition of the Handbook, which 
provides an overview of the educational and certification requirements for special education teachers 
employed in public or private school settings. 
However, the Petitioner operates an adult day center and provides vocational, social, and personal 
development training. The Petitioner specifically states in its letter of support that it "is not 
primarily an education institute." Further; it states 
that a state certification or license.is not required 
to perform the duties of the proffered position as its position does not focus on the instruction of 
individuals in grades K-12. It appears, therefore, that the Director incorrectly classified the 
proffered position as that of a special education teacher in a public or private school, which differs 
from the Petitioner's classification of the proffered position here.7 Thus, we withdraw the Director's 
findings with regard to the educational requirements for the proffered position. 
Turning now to whether the proffered position here· is a specialty occupation, we reviewed the 
Handbook regarding the occupational category "Special Education Teachers, All Other." While the 
Handbook is a career resource offering information on hundreds of occupations, there are 
occupational categories which are not covered in detail by the Handbook (instead it only includes 
summary data8), as well as occupations for which the Handbook does not provide any 
information. Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
Data for Occupations Not Covered in Detail (2016-17 ed.). 
The Handbook does not provide a detailed narrative account for this occupational category, but 
provides summary data. The Handbook states that the typical entry-level education for this 
occupation is a bachelor's degree, but does not indicate a specific specialty. Thus, the Handbook 
does not support the claim that the occupational category here is one for which normally the 
minimum requirement for entry is a baccalaureate degree (or higher) in a specific specialty, or its 
equivalent. Moreover, the Petitioner has not provided documentation from another probative source 
to substantiate its assertion regarding the minimum requirement for entry into this particular 
position. Thus, the Petitioner has not satisfied the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
7 The Director appears to have considered the proffered position as that of a special education teacher in one of the 
alternate occupational categories applicable only to those individuals employed in public or private schools: 25-2052 
(Kindergarten and Elementary School; 25-2053 (Middle School); and 25-2054 (Secondary School). Here, the proffered 
position was classified under 20-2059 to distinguish the position from one within the public or private school sectors. 
8 The occupational categories for which the Handbook only includes summary data includes a range of occupations, 
including for example , postmasters and mail superintendents; agents and business managers of artists, performers, and 
athletes; farm and home management advisors; audio-visual and multimedia collections specialists; clergy ; merchandise 
displayers and window trimmers ; radio operators ; first-line supervisors of police and detectives; crossing guards ; travel 
guides ; agricultural inspectors, as well as others. 
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B. Second Criterion 
The second criterion presents two alternative prongs: "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(.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors we often consider 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
, 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As discussed, the Petitioner has not established that its proffered position is one for which the 
Handbook, or other independent , authoritative source, reports a requirement for at least a bachelor's 
degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous 
discussion on the matter. Also, there are no submissions from the industry's professional association 
indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did 
nnt submit any letters or affidavits from similar firms or individuals in the Petitioner's industry to 
establish that such firms "routinely employ and recruit only degreed individuals." ' 
Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
Here, the evidence of record does not credibly demonstrate relative complexity or uniqueness as aspects 
of the proffered position. Specifically, it is unclear how the special education teacher position, as 
described, necessitates the theoretical and practical application of a body of highly specialized 
knowledge such that a person who has attained a bachelor's or higher degree in a specific specialty or 
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Matter of 
its equivalent is required to perform them. For instance, the Petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the duties of the proffered position. While related courses may 
be beneficial in performing certain duties, the evidence of record does not demonstrate how an 
established curriculum of such courses leading to a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is required to perform the duties of the proffered position. 
·The Petitioner ,claims that the Beneficiary is well qualified for the position, and references her 
qualifications. However, the test to establish aposition as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The evidence of record has not satisfied the second 
alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, 
or its equivalent, for. the position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See generally Defensor, 201 F.3d at 387-88. Evidence provided in support of this criterion may 
include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring 
practices, as well as information regarding employees who previously held the position. 
The record of proceeding does not contain sufficient evidence demonstrating the Petitioner's hiring 
history for the proffered position. As the record of proceedings does not demonstrate that the 
Petitioner normally requires at least a bachelor's degree iri a specific specialty or its equivalent for 
the proffered position, the Petitioner has not satisfied 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialize4 and COil)plex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
We reviewed the Petitioner's statements regarding the proffered position and its operations, noting 
that it provides "vocational, social, and personal development training to prepare its 
consumers/students for transition into competitive and supported employment." However, relative 
specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of 
the proffered position . 
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Matter of, 
We note the Petitioner's designation of the position in the LCA as a Level I position (the lowest of 
four assignable wage-levels) relative to others within the same occupational category.9 The 
Petitioner has not demonstrated in the record that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
IV. CONCLUSION 
Absent a determination that the proffered position is a specialty occupation that requires at least a 
baccalaureate or higher degree in a specific specialty or its equivalent, it cannot be determined 
whether the Beneficiary possesses that degree or its equivalent. 10 As the Petitioner was not 
previously accorded the opportunity to address the deficiencies in the record regarding the specialty 
occupation nature of the proffered position, we. will remand the matter for further review of this 
issue. The Director may request any additional evidence considered pertinent to the new 
determination. 
ORDER: The decision of the Director is withdrawn. The. matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of. , ID# 354160 (AAO June 14, 2017) 
9 The Petitioner's designation of this position as a Levell, entry-level position undermines its assertion that the position 
is particularly complex , specialized , or unique compared to other positions within the same occupation. Nevertheless , a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation , just as a 
Level_IV wage-designation does 
not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act 
10 We observe that one of the evaluations of the Beneficiary 's foreign education states that the Beneficiary's education is 
equivalent to a U.S. bachelor's degree in elementary education: The record does not sufficiently demonstrate that the 
Beneficiary's degree is related to the proposed duties, which require her to work with adults between the ages of 18 and 
59. 
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