sustained H-1B Case: Exercise Science

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: SRC 05 14651171 Office: TEXAS SERVICE CENTER Date: MAR 0 5 2007
INRE: 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.uscis.gov
SRC 05 14651171
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DISCUSSION: The service center director 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 an exercise facility/wellness center. It seeks to employ the beneficiary as an exercise
physiologist/wellness center manager and to classify her 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.
§ 1101(a)(15)(H)(i)(b).
The director denied the petition stating that the proffered position does not qualify as a specialty occupation. On
appeal, counsel submits a brief and additional information stating that the offered position qualifies as a specialty
occupation.
The first issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty
occupation.
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant 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
(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:
[A]n 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;
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(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 are 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 proffered position.
The record of proceeding before the AAO contains : (1) the 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) the Form 1-290B with counsel's brief. The AAO reviewed the record in its
entirety before issuing its decision.
The petitioner is seeking the beneficiary's services as an exercise physiologist/wellness center manager.
Evidence of the beneficiary's duties includes the Form 1-129 petition with attachment and the petitioner's
response to the director's request for evidence. In describing the duties of the proffered position the petitioner
states that the position requires a combination of duties concerning exercise physiology and facility and
personnel management. In addition to directing client services in the areas of physical and health evaluation,
exercise instruction, conditioning, goal setting, monitoring and training, the beneficiary would also be
involved in facility and.program management. Those duties would include budget preparation, advertising,
marketing and promotion, and personnel management. Specifically, the beneficiary would:
• Perform fitness testing (maximum oxygen consumption, muscular endurance, muscular strength,
flexibility and body composition) and prescribe exercise programs based on individual results;
• Assist clients in the use of aerobic and weight training equipment;
• Advise clients on nutrition and weight management;
• Lead exercise classes;
• Be responsible for the organization and coordination of staff members and their weekly work
schedules; and
• Direct the overall billing procedures associated with the facility and perform any other
duties/responsibilities as assigned.
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The petitioner requires a minimum of a bachelor's degree in physical education or exercise science for entry
into the proffered position.
Upon review of the record, the petitioner has established that the proffered position qualifies as a specialty
occupation. The AAO routinely consults the U.S. Department of Labor's Occupational Outlook Handbook
(Handbook) for information about the duties and educational requirements of particular occupations. The
duties of the proffered position are essentially those of fitness directors as described in the Handbook. The
Handbook notes that fitness directors oversee the fitness-related aspects of a health club or fitness center.
Their work involves creating and maintaining programs that meet the needs of the club's members, including
new member orientations, fitness assessments, and workout incentive programs. They also select fitness
equipment; coordinate personal training and group exercise programs; hire, train, and supervise fitness staff;
and carry out administrative duties. The Handbook states that a bachelor's degree, and in some cases a
master's degree, in exercise science, physical education, kinesiology, or a related area, along with experience,
usually is required to advance to management positions in a health club or fitness center. The petitioner has
established that the proffered position qualifies as specialty occupation as a baccalaureate or higher degree is
normally the minimum requirement for entry into the position. 8 C.F .R. § 214.2(h)( 4)(iii)(A)( 4).
The director did not comment on the beneficiary's qualifications to perform the duties of a specialty occupation as
the petition was denied on another ground. The record is, however, sufficient for the AAO to make that
determination.
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-IB
nonimmigrant worker must possess:
(A) full state licensure to practice in the occupation, if such licensure is required to
practice in the occupation,
(B) completion of the degree described in paragraph (l)(B) for the occupation, or
(C) (i) experience in the specialty equivalent to the completion of such degree, and
(ii) recognition of expertise in the specialty through progressively responsible
positions relating to the specialty.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, the alien
must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by the specialty occupation
from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or
higher degree required by the specialty occupation from an accredited college or
university;
(3) Hold an unrestricted State license, registration or certification which authorizes him or
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her to fully practice the specialty occupation and be immediately engaged in that
specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience that is
equivalent to completion of a United States baccalaureate or higher degree in the
specialty occupation, and have recognition of expertise in the specialty through
progressively responsible positions directly related to the specialty.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D), for purposes of paragraph (h)(4)(iii)(C)(4) of this section,
equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a
level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal
to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by
one or more of the following:
(1) An evaluation from an official who has authority to grant college-level credit for
training and/or experience in the specialty at an accredited college or university which
has a program for granting such credit based on an individual's training and/or work
experience;
(2) The results of recognized college-level equivalency examinations or special credit
programs, such as the College Level Examination Program (CLEP), or Program on
Noncollegiate Sponsored Instruction (PONSI);
(3) An evaluation of education by a reliable credentials evaluation service which specializes
in evaluating foreign educational credentials ;
(4) Evidence of certification or registration from a nationally-recognized professional
association or society for the specialty that is known to grant certification or
registration to persons in the occupational specialty who have achieved a certain level
of competence in the specialty;
(5) A determination by the Service that the equivalent of the degree required by the
specialty occupation has been acquired through a combination of education, specialized
training, and/or work experience in areas related to the specialty and that the alien has
achieved recognition of expertise in the specialty occupation as a result of such training
and experience.
The petitioner possesses a Bachelor of Science degree in general studies with a major in exercise science from
Delta State University in Cleveland, Ms. That degree is closely related to the duties of the proffered position
and was obtained from an accredited university in the United States. The beneficiary does, therefore, qualify
to perform the duties of the offered specialty occupation. 8 C.F.R. § 214.2(h)(4)(iii)(C)(l).
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 and the appeal shall accordingly be sustained.
ORDER: The appeal is sustained. The petition is approved.