sustained H-1B Case: Construction

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 233 55415 Office: CALIFORNIA SERVICE CENTER Date: _~i-- 2 3'j[!S 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
PNSTRUCTIONS: 
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 
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Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant visa petition and the Administrative 
Appeals Office (AAO) summarily dismissed a subsequent appeal. The matter is again before the AAO on 
motion to reopen. The motion is granted, and the prior decision of the AAO is withdrawn. Upon 
consideration of the appeal, the appeal will be sustained, and the petition will be approved. 
The petitioner is a general contractor engaged in project management, design, and building of multi-family 
buildings, low-income housing, commercial buildings, schools, and public projects such as firestations and 
public libraries. In order to employ the beneficiary as a project engineer, the petitioner 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. 1 10 l(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proffered 
position met the requirements of a specialty occupation as set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A). Counsel 
subsequently filed a timely Form I-290B, but it did not identify specifically any erroneous conclusion of law 
or statement of fact by the director. The AAO summarily dismissed the appeal because it had not received the 
brief and/or evidence that the Form I-290B stated would follow in 30 days. On motion, counsel has overcome 
the basis of the summary dismissal, by demonstrating that, prior to the AAO decision, he had filed the 
material specifying the grounds of the appeal. Accordingly, the AAO's previous decision will be withdrawn, 
and the AAO will consider the appeal. 
The director determined that the proffered position aligns with the construction manager occupational 
category as described in the Department of Labor's Occupational Outlook Handbook (Handbook), which 
Citizenship and Immigration Services (CIS) recognizes as an authoritative source on the duties and educational 
requirements of a wide variety of occupations. The director noted, in part, that the Handbook indicates that 
employers indicate a growing preference, but not a normal requirement, for a bachelor's degree in a specific 
specialty. On appeal, counsel contends that the petitioner has established that the duties of the proffered 
position exceed those of a construction manager and require a bachelor's degree in a specific specialty such as 
architecture. 
The petitioner has overcome the grounds for the director's denial. The AAO bases this determination upon its 
consideration of the entire record of proceeding before it, which includes: (1) the petitioner's Form 1-129 and 
the supporting documentation filed with it; (2) the director's request for additional evidence (WE); (3) the 
materials submitted in response to the WE; (4) the director's denial letter; and (5) the Form I-290B and 
counsel's brief, dated December 23, 2003. 
Section 101 (a)( lS)(H)(i)(b) of the Act, 8 U.S.C. 9 1 10 1 (a)(l S)(H)(i)(b), provides a nonimmigrant 
classification for aliens who are coming temporarily to the United States to perform services in a specialty 
occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 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 
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(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. 
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. 8 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation: 
which [I] requires theoretical and practical application of a body of highly specialized 
knowledge in fields of human endeavor including, but not limited to, architecture, engneenng, 
mathematics, physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [2] requires the attainment of a 
bachelor's degree or higher in a speczjic specialty, or its equivalent, as a minimum for entry into 
the occupation in the United States. (Italics added.) 
Pursuant to 8 C.F.R. 8 214.2(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. 
CIS has consistently interpreted the term "degree" in the criteria at 8 C.F.R. 9 214.2(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. Applying this standard, CIS regularly approves H-1B petitions for qualified aliens who are to be 
employed as engineers, computer scientists, certified public accountants, college professors, and other such 
professions. These occupations all require a baccalaureate degree in the specific specialty as a minimum for 
entry into the occupation and fairly represent the types of professions that Congress contemplated when it 
created the H-1B visa category. 
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According to its July 24,2003 letter of support that was filed with the Form 1-129: 
[The petitioner is] a general contractor involved in new construction, project management and 
designlrelated aspects concerning multi-family buildings, low income housings, commercial 
buildings, schools and public projects such as public libraries, fire stations, etc. We were 
established in 1983, currently employ 30 people, and, most recently, reported gross revenues 
of $40 million. 
This letter of support includes these statements about the proffered position: 
[The beneficiary's] duties will be highly complex. Initially, he will meet with our clientele in 
order to discuss their project requirements and needs. He then will create a proposed design 
which will be coordinated with licensed company and engineering and architectural 
personnel. Under their direct supervision, he will partake in such functions as design 
development, space planning, interior presentation, and the rendering of various perspectives 
including aerial views of the proposed project. 
In addition, we wish to convey that much of the work will be applied to both residential as 
well as commercial projects. Thus, as part of his responsibilities, he will partake in 
comprehensive architectural analysis incorporating AUTOCAD designs utilizing second and 
third generation software. He will also prepare bills of materials and will design a variety of 
engineering protection systems to be implemented into the various properties. 
Furthermore, among [the beneficiary's] responsibilities will include [sic] the review of plans 
particularly oriented to projecting stress analysis factors. Therefore, such features as load 
requirements, size, shape and strength of the particular structure must properly be computed 
in order to insure that the edifice's stress levels are not only in compliance with code, but will 
further withstand all foreseeable stress fractures that may occur. At the same time, [the 
beneficiary] will also be required to inspect all completed projects, and will recommend 
remedial procedures where major stress fractures may come into play. It should be noted that 
much of the calculative work will access highly developed computer engineering software 
that has been particularly adapted for structural engineering purposes. 
In the final series of work to be performed by [the beneficiary], he will be required to partake 
in review of product design work, which must be in compliance with established engineering 
principles, company standards, customer contract requirements, and related specifications. In 
this regard, he will coordinate all activities concerned with technical developments, 
scheduling, and resolving engineering and test problems. 
The petitioner's October 13, 2003 letter of reply to the RFE includes this information about the proposed 
duties: 
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[W]e would like to clarify that as a Project Engineer at this company, [the beneficiary's] 
duties will primarily entail serving as a coordinator between the field crew, owner, architect 
and the design engineers in resolving technical issues and glitches that might emerge at any 
point within the construction process. To achieve this, he will review design and construction 
drawings in order to determine possible construction issues as well as responding to field 
emergencies. Moreover, [the beneficiary] will equally monitor various submittals in order to 
achieve timely delivery of the particular project in question. 
Therefore, in summary, we would like to emphasize that the position will require that the 
Project Engineer coordinate project requirements and specifications through the project 
architect, engineering consultant and subcontractor, review design and construction drawings 
to determine possible construction-related issues, project information coordination between 
our company and the private owners, engage in the coordination of plan clarifications, 
technical information, site memos and submittals to the owner's consultant, architect and 
subcontractors, create proposed design subject to review, approval and signature of a licensed 
EngineerIArchitect in the State of California, prepare CAD generated shop drawings for the 
Architect's ultimate approval to be used on the actual site construction, and to review all 
submittals in compliance with the specifications being sought before submitting to the 
ArchitectIOwner. 
[W]e would like to equally emphasize that in light of the comprehensive work involving 
design development, space planning, interior presentation, architectural analysis, the 
preparation of highly detailed engineering-related paperwork and the implementation of 
remedial procedures involving the review of design and construction drawings where 
modifications will be rendered by the Project Engineer in order to insure that the project work 
will ultimately be in compliance with client contract requirements and specifications, 
company standards, and established engineering principles, it is apparent that a degreed 
professional will be necessary to engage in this type of position. 
As a preliminary matter, the AAO does not concur with the director's judgment (at page 3 of his decision) that the 
petitioner's reply to the RFE materially alters the proposed duties as presented in the Form 1-129 and the July 24, 
2003 letter of support that was filed with it. 
The AAO finds that the petitioner has satisfied the specialty occupation criterion of 8 C.F.R. 
$ 214.2(h)(4)(iii)(A)(4) by establishing that the nature of the specific duties is sufficiently specialized and 
complex that their performance requires knowledge that is usually associated with the attainment of a 
baccalaureate degree withn a small range of specialty degrees that includes architecture. The AAO reaches this 
conclusion on the basis of the totality of the particular evidence of record in this proceeding, including the extent 
of the description of the proposed duties, the explanations of the subordinate but substantive interactions which 
the beneficiary would have with licensed architects and engineers, the content of the expert opinion rendered by 
the professor from the Construction Department at Southern Polytechnic State University who is also a 
construction consultant to management firms and general contractors, and the information presented about the 
petitioner's construction projects. 
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The Handbook indicates that employers increasingly prefer individuals who combine industry work experience 
with a bachelor's degree in construction science, construction management, or civil engineering. The Handbook 
also indicates that that an increasing number of graduates in related fields - engineering or architecture, for 
example - also enter construction management. 
As the record's educational evaluation and associated documentation establish that the beneficiary holds a 
foreign degree that is equivalent to a United States bachelor's degree in architecture, the petitioner has 
established that the beneficiary is qualified to perform the services of the proffered position in accordance 
with the regulation at 8 C.F.R. $ 214.2(h)(4)(iii)(C). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has sustained that burden. Accordingly, the appeal will be sustained and the petition 
will be approved. 
ORDER: The AAO decision of July 1, 2004 is withdrawn. The appeal is sustained. The petition is 
approved.