sustained H-1B Case: Education

U.S. Department of Homeland Security
20 Mass. Ave. N.W., Rm. 3000
Washington, DC 20529
identifyingdatadeletedto
preventclearlyunW8ITIIltat
invasionofpenonIIpriv~y
PUBLIC COpy
S[p (), 2007
u.s.Citizenship
and Immigration
Services
Office: TEXAS SERVICE CENTER Date:SRC 05 252 50382FILE:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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, Chief
Administrative Appeals Office
www.uscls.gov
SRC 05 252 50382
Page 2
DISCUSSION: . The Director, Texas Service Center, denied the nonimmigrant visa petition and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.
The petition will be approved.
The petitioner is a private, for profit, educational institution established in 2000, with fifteen employees,
and $487,737.00 gross income. It seeks to employ the beneficiary as a preschool teacher. The petitioner,
therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant
to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1 101(a)(15)(H)(i)(b).
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the
director's denial letter; (3) the director's request for evidence; (4) the petitioner's response to the director's
request for evidence; and (5) the Form 1-290B and supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The director denied the petition on the basis that the petitioner failed to establish that the proposed position
qualifies for classification as a specialty occupation.
Section 214(i)(1) of the Immigration and Nationality Act (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
(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 term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)( 4)(ii) as:
An occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to,
architecture, engineering, mathematics, physical sciences, social sciences, medicine and
health, education, business specialties, accounting, law, theology, and the arts, and which
requires the attainment of a bachelor's degree or higher in a 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:
(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 positrons among
similar organizations or, in the alternative, an employer may show that its particular
SRC 05 252 50382
Page 3
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. § 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 proposed position.
The proposed position qualifies as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which
requires a showing that the petitioner normally requires a degree or its equivalent for the position. To
determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's past
employment practices, as well as the histories, of those employees with degrees who previously held the
position. The petitioner has submitted evidence of the education of its teachers. All six of its preschool
teachers have a baccalaureate degree in early childhood education or a related field. The petitioner has
submitted sufficient evidence to establish that it normally requires candidates for the proposed position to
possess a bachelor's degree in a related field.
The AAO notes that the beneficiary earned a degree from the Universidad Central de Venezuela which has
been determined to be equivalent to a bachelor's degree in early childhood education from a regionally
accredited institution of higher education in the United States, a specific specialty directly related to the
proposed position. The beneficiary is qualified to perform the duties of the specialty occupation.
The petitioner has established both that the position qualifies for classification as a specialty occupation
and that the beneficiary is qualified to perform the duties of a specialty occupation. As such, the petition
will be approved.
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.
ORDER: The appeal is sustained. The petition is approved.