sustained H-1B Case: Healthcare

identifying data dele$& to 
prevent clearly unwarranted 
invasion of personal privacy 
- PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 232 54307 Office: CALIFORNIA SERVICE CENTER Date: AUG 1 5 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 lOl(a)(lS)(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 
WAC 04 232 54307 
Page 2 
DISCUSSION: The director of the 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 an adult day health care center that seeks to employ the beneficiary as a program associate. 
The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to section IOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the proffered position is not a specialty occupation. 
Counsel submits a timely appeal. 
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. § 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. 3 214.2(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 director found that a bona fide position of program associate (psychologist) requires the beneficiary to 
have a baccalaureate degree. However, the director did not find that the petitioner demonstrated a reasonable 
and credible offer of employment. The director referred to a previously approved petition submitted on 
behalf of another beneficiary and found inconsistencies in that record relating to the wages paid by the 
WAC 04 232 54307 
Page 3 
petitioner to that beneficiary. According to the director, the petitioner failed to pay the beneficiary in that 
petition the full wage she was entitled to as stated in the Form 1-129 petition and Labor Condition Application 
(LCA) filed in conjunction with the petition or was not employed for the number of hours specified in the 
petition. As a result of these findings, the director found that the petitioner misrepresented information in the 
Form 1-129 petition and the LCA, and as a result of this he could not determine the authenticity of the 
position which is offered here. 
On appeal, counsel states that the beneficiary in the previously approved petition was paid the proper wage of 
$17.50 per hour in accordance with the petition and LCA. Counsel asserts that the 1-129 petition indicated 
that the beneficiary would work 25 to 30 hours a week, thereby earning $22,750 to $27,300 annually. 
Counsel submits a copy of the previously approved H-1B petition, medical documentation relating to the 
beneficiary's child, and a letter from the beneficiary stating that he voluntarily reduced his hours of work to 
care for his child. 
In the denial, the director discussed his concern about the wage paid to another beneficiary in a previously 
approved petition. The regulation at 8 C.F.R. 5 214.2(h)(i)(II)(A) addresses this issue. It states in part that a 
petitioner shall immediately notify CIS of any changes in the terms and conditions of employment of a 
beneficiary which may affect the beneficiary's eligibility under Section 101(a)(15)(H) of the Act. Pursuant to 
8 C.F.R. 9 214.2(h)(2)(i)(E), a petitioner must file an amended petition to reflect any material change in the 
terms and conditions of an alien's employment. A material change is a change that directly impacts the 
alien's continued eligibility for H-1B classification. In this instance, the only change that occurred was a 
reduction in the hours that the beneficiary worked. The submitted letter from the beneficiary of the 
previously approved petition indicated that the beneficiary requested a reduction in the hours that he worked 
in order to care for his child, and the petitioner submitted into the record hospital records relating to the child. 
The petitioner's undated letter indicated that it continued to pay the beneficiary $17.50 per hour. Based on 
the evidence in the record, a reduction in the hours worked by the beneficiary does not constitute a material 
change in the terms and conditions of employment. Thus, the AAO finds that there are no inconsistencies in 
the evidence relating to the wages paid to the beneficiary in the previously approved petition. 
Upon review of the record, the petitioner has established that it will employ the beneficiary in a specialty 
occupation. 
The AAO concurs with the director's conclusion that the proposed position of program associate qualifies as a 
specialty occupation. 
The AAO will now address whether the beneficiary is qualified to perform the duties of the offered position, 
which involves assisting the program director. The petitioner asserts that the position requires a bachelor's 
degree in social ecology. 
The record contains the beneficiary's degree in social ecology (with a major in psychology) from the 
University of California, Los Angeles. Based on this evidence, the AAO finds that the beneficiary is 
qualified to perform the duties of the proposed position. 
WAC 04 232 54307 
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As related in the discussion above, the petitioner has established that the proffered position is a specialty 
occupation. 
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 sustained that burden. 
ORDER: The appeal is sustained. The petition is approved.