sustained H-1B Case: Fashion Design

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 02 106 53654 Office: CALIFORNIA SERVICE CENTER Date: Jkk 14 ZUuG 
IN RE: Petitioner: 
Beneficiary 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (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 further inquiry must be made to that office. 
1,' 
 J* t 
- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 02 106 53654 
Page 2 
DISCUSSION: The director of the California Service Center denied the nonimmigrant visa petition and the 
Administrative Appeals Office (AAO) dismissed a subsequent appeal. The petitioner and the beneficiary filed a 
complaint in the U.S. District Court for the Central District of California seeking declaratory relief requiring 
Citizenship and Immigration Services (CIS) to approve the H-1B petition. Psychedelic Mystic Inc.; Chisato 
Ikezma vs. Alberto R.Gonzalez, et al, CV-05-8588 NM (PJWx) (filed December 8, 2005). Upon review, the 
AAO, on its own motion, reopens the proceeding to reconsider its previous decision pursuant to 8 C.F.R. 
tj 103.5(a)(5)(ii). The AAO will withdraw its prior determination. The petition will be approved. 
The petitioner is a clothing designer contractor, with one employee. It seeks to employ the beneficiary as a 
fashion designer pursuant to section lOl(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 
U.S.C. tj 1 lOl(a)(ls)(H)(i)(b). The director denied the petition because he determined that the position was 
not a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) prior counsel's response to the director's request; (4) the director's denial; 
(5) the Form I-290B, with additional documentation; and (6) the AAO's dismissal of the appeal. The AAO 
reviewed the record in its entirety before issuing its decision. 
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meets its 
burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary meets 
the following statutory and regulatory requirements. 
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. 
The term "specialty occupation" is further defined at 8 C.F.R. tj 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. fj 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; 
WAC 02 106 53654 
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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 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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty 
as the minimum for entry into the occupation, as required by the Act. 
The petitioner seeks the beneficiary's services as a fashion designer and indicates that the proffered position 
requires a bachelor's degree of fine arts in fashion design or its equivalent. Evidence of the beneficiary's 
duties includes: the Form 1-129; the petitioner's January 25, 2002 letter in support of the petition and prior 
counsel's April 26, 2002 response to the director's request for evidence. As described, the duties of the 
proffered position would require the beneficiary to: 
Design clothing and accessories, specializing in fashions for women; 
Analyze fashion trends, compare fabrics and other materials, and integrate these 
findings with [the beneficiary's] personal touch to create unique designs; 
Sketch rough and detailed drawings of apparel and write specifications describing 
factors such as color scheme, construction, and type of material to be used; 
Confer and coordinate with workers who draw and cut patterns, and construct 
garments to fabricate sample garment; 
Examine sample garments on and off models and modify design as necessary to 
achieve desired effect; 
Cut patterns and construct samples using sewing equipment; 
Arrange for the showing of sample garments at sales meetings or fashion shows; and 
Attend fashion and fabric shows to observe new fashions and fabrics. 
To make its determination whether the employment just described qualifies as a specialty occupation, the 
AAO turns to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry into the particular position; and a degree requirement 
is common to the industry in parallel positions among similar organizations or a particular position is so 
WAC 02 106 53654 
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complex or unique that it can be performed only by an individual with a degree. Factors considered by the 
AAO when determining these criteria include: whether the Department of Labor's Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
occupations, reports 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 attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. 
Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 
I 102 (S.D.N.Y. 1989)). 
The petitioner has stated that the proffered position is that of a fashion designer. To determine whether the 
duties of the proffered position support the petitioner's characterization of its employment, the AAO turns to 
the 2004-2005 edition of the Handbook for its discussion of fashion designers. As stated by the Handbook: 
Designers are people with a desire to create. They combine practical knowledge with artistic 
ability to turn abstract ideas into formal designs for the . . . clothes we wear . . . . 
Designers . . . prepare sketches . . . to illustrate the vision for the design . . . . 
Fashion designers design clothing and accessories . . . . Most fashion designers . . . work for 
apparel manufacturers, creating designs of men's, women's, and children's fashions for the 
mass market. [Handbook at page 2421. 
Based on the above discussion, the AAO finds the petitioner's description of the duties of the proffered 
position to establish it as that of a fashion designer, an industry in which, the Handbook reports, employers 
seek individuals with a "2- or 4-year degree who are knowledgeable in the areas of textiles, fabrics and 
ornamentation, and about trends in the fashion world." However, as those with two-year degrees normally 
may qualify only as "assistants to designers" or for entrance to a formal baccalaureate degree program, the 
Handbook establishes that employment as a full-fledged fashion designer usually requires a four-year degree. 
It does not, however, indicate that the four-year degree required for employment must be in a directly related 
academic field, as required for classification as a specialty occupation. Accordingly, the proffered position 
may not be established as a specialty occupation under the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I) - a 
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the 
particular position. The record also fails to establish the proposed duties as comprising a position that is 
identifiable with an industry-wide standard or a position that is distinguishable, by its uniqueness or greater 
complexity, from similar, but non-degreed employment, as required to satisfy the criterion at 8 C.F.R. 
§ 2 14.2(h)(4)(iii)(A)(2). 
The AAO next considers the criteria at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(3) and(4): the employer normally 
requires a degree or its equivalent for the position; and the nature of the specific duties is so specialized and 
WAC 02 106 53654 
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complex that the knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree. 
The petitioner, a newly-formed company, does not have a history of recruiting and hiring for the proffered 
position and so cannot establish it as a specialty occupation based on its normal hiring practices. However, 
the AAO finds that the petitioner has demonstrated that the proposed duties are sufficiently specialized and 
complex that their performance requires knowledge usually associated with the attainment of a baccalaureate 
degree in fine arts in a design-related field. Therefore, the petitioner has satisfied the criterion at 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(4). Accordingly, the AAO withdraws its prior determination that the proffered position is 
not a specialty occupation. 
The AAO now turns to the record before it to determine whether the beneficiary is qualified to perform the 
duties of the proffered position. 
To prove that a beneficiary is qualified to perform the duties of a specialty occupation, a petitioner must 
establish that the beneficiary meets one of the requirements set forth at Section 214(i)(2) of the Act, 8 U.S.C. 
5 1184(i)(2) -- full state licensure to practice in the occupation, if such licensure is required; completion of a 
degree in the specific specialty; or experience in the specialty equivalent to the completion of such degree and 
recognition of expertise in the specialty through progressively responsible positions relating to the specialty. 
Further discussion of how an alien qualifies to perform services in a specialty occupation is found at 8 C.F.R. 
tj 214.2(h)(4)(iii)(C), and requires the individual to: 
(I) 
 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 
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, andlor 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. 
To establish the beneficiary's qualifications to perform the duties of a fashion designer, the petitioner has 
provided copies of the beneficiary's 2000 diploma from the American Intercontinental University, an 
academic institution accredited by the Southern Association of Colleges and Schools, and the beneficiary's 
academic transcripts from that institution. The evidence submitted by the petitioner establishes that the 
WAC 02 106 53654 
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beneficiary holds a bachelor of fine arts in fashion design. Accordingly, the petitioner has established that the 
beneficiary holds a U.S. degree required to perform the duties of the proffered position. The beneficiary is 
qualified to perform the duties of a specialty occupation under the criterion at 8 C.F.R. 
9 214.2(h)(4)(iii)(C)(r). 
For the reasons previously discussed, the petitioner has established both that the proffered position is a 
specialty occupation and that the beneficiary is qualified to perform the duties of a specialty occupation. 
Accordingly, the AAO will withdraw its prior decision. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has met that burden. 
ORDER: 
 The AAO's prior decision is withdrawn. The petition is approved.