sustained H-1B Case: Graphic Design

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 03 157 53747 Office: VERMONT SERVICE CENTER Date: F[)3 2 3 2006 
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 1 101(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. 
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 Robert P. Wieman , D' ctor 
U 
Administrative ~ppedoffice 
EAC 03 157 53747 
Page 2 
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 a graphic design firm that seeks to employ the beneficiary as a graphic designer. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
section 10 l(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(l 5)(H)(i)(b). 
The director denied the petition because the petitioner did not establish that the beneficiary would be 
performing the duties of a specialty occupation. On appeal, counsel submits a brief. 
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. 
Pursuant to 8 C.F.R. 5 214.2(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
5 214.2(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) 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; (5) Form I-290B and supporting documentation; (6) the director's decision rejecting 
the appeal and treating it as a motion to reopen on the basis of late filing; and (7) the petitioner's response to 
EAC 03 157 53747 
Page 3 
the director's decision rejecting the appeal. The AAO reviewed the record in its entirety before issuing its 
decision. 
The petitioner is seeking the beneficiary's services as a graphic designer. Evidence of the beneficiary's duties 
includes the 1-129 petition and the petitioner's April 15, 2003 letter in support of the petition. According to 
this evidence, the beneficiary would perform duties that entail: studying illustrations to plan presentation of 
material as a prototype of a product; determining the size and arrangement of illustrative material and copy; 
selecting style and size of type and arranging layout based upon specifications; drawing sample of finished 
layout and presenting sample to client for approval; preparing notes and instructions for workers who 
assemble and prepare final layouts for printing; reviewing final layout and suggesting improvements as 
needed; and preparing illustrations or rough sketches according to instructions of client. The petitioner 
indicated that a qualified candidate for the job would possess a bachelor's degree in graphic design. 
The director found that the petitioner, a start-up company, did not establish that it had "sufficient HlB caliber 
work to keep the beneficiary employed on a full time basis for three years." The director also found that the 
petitioner failed to respond to his request for additional information regarding the structure of the petitioner's 
organization. The director asserted that as a one-person business, the beneficiary would be responsible for 
administrative and clerical duties, which are not specialty occupations. Finally, the director stated that the 
beneficiary could not "assume the role of Graphic Designer without having the clientele established, work 
contracts in place and expectations of the position defined. . . [I]n this case the need to perform duties 
associated with the position do not exist. Without clientele, work contracts and specific duties there is no 
work." 
On appeal, counsel states that the Department of Labor's Occupational Outlook Handbook (Handbook) 
clearly reflects that a graphic designer is a specialty occupation, and that the AAO has previously determined 
that a graphic designer is a specialty occupation. Counsel states that it appears that the director's "true 
rationale for denying the petition primarily concentrates on the fact that the petitioner is a new company." 
Counsel asserts that the director inappropriately raised the concept of speculative employment, which the 
AAO has previously determined is not a sound basis for denying a petition. Counsel further asserts that the 
fact that a petitioner may be owned in whole or in part by the beneficiary does not negate that an employer- 
employee relationship exists. 
Upon review of the record, the petitioner has established one of the four criteria outlined in 8 C.F.R. 
9 214.2(h)(4)(iii)(A). Therefore, the proffered position is a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 9 214.2(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; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria 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 attest that such firms 
EAC 03 1 57 53747 
Page 4 
"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 HirdBIaker Corp. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The proffered position is a graphic designer. On appeal, counsel provides additional 
documentation regarding the petitioner's clients and work product, and the beneficiary's duties. Despite the 
fact that the beneficiary may also be engaged in some administrative tasks as a sole proprietor, most of the 
duties of the position include those of a graphic designer, which the Handbook indicates could not be 
performed without the training and education that are included in a bachelor's degree in graphic design. The 
petitioner has, thus, established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I). 
The regulations define a U.S. employer at 8 C.F.R. 5 214,2(h)(4)(ii) as a person, firm, corporation, contractor, 
or other association, or organization in the United States which: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of 
any such employee. 
The petitioner is a limited liability corporation established under the laws of the State of New York and has 
engaged the beneficiary to work in her individual capacity as a graphic designer. The beneficiary established 
the corporation. The petitioner submitted an offer of employment to the beneficiary. Counsel has stated that 
a previous AAO decision supported the premise that a petitioner's sole owner can be the same person as the 
sole beneficiary. Matter of X, File No. SRC 98 101 50785, August 1999, reported in 5:2 immigration 
Bulletin, 89-90 (Matthew Bender Jan. 15, 2000). In that case, the AAO cited Matter of Aphrodite, 17 I&N 
Dec. 530 (Comm'r 1980), to support its position. The AAO finds in this case that the petitioner is a separate 
legal entity from the beneficiary, and the beneficiary would not be self-employed. 
Established tenets of corporate law, as well as cases such as Matter ofAphrodite, state that a corporation has a 
separate legal identity from its owner. As such, a corporation, even if it is owned and operated by a single 
person, may hire that same individual and the parties will be in an employer-employee relationship, as is the 
case in the instant matter. 
The beneficiary has the equivalent to a bachelor's degree in graphic design from a U.S. university, indicating 
that she is qualified for this specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has sustained that burden. Accordingly, the appeal will be sustained and the petition 
will be approved. 
ORDER: 
 The appeal is sustained. The petition is approved.