sustained H-1B Case: Nutrition

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 055 53496 Office: VERMONT SERVlCE CENTER Date: f €8 ;! 3 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 10 l(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, Director 
Administrative Appeals Office 
EAC 04 055 53496 
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 an individual that seeks to employ the beneficiary as a nutritionist. The petitioner endeavors to 
classify her as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)@) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 10 1 (a)( 1 5)(H)(i)(b). 
The director denied the petition because the proffered position does not qualify as a specialty occupation. On 
appeal, counsel submits a brief and additional information asserting that the offered position qualifies as a 
specialty occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section 1 Ol(a)(l 5)(H)(i)(b) of the Act, 8 U.S.C. 5 1 lOl(a)(l S)(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 2 14(i)(l) of the Act, 8 U.S.C. 5 11 84(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. fj 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. 9 214.2(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; 
EAC 04 055 53496 
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(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. 
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 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 I-290B with supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a nutritionist. 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. According to this evidence the beneficiary would perform the following duties on behalf of the 
petitioner's son who suffers from stomach disorders, food allergies, and severe disability: 
Access the nutritional needs, diet restrictions and current health plans to develop and implement 
dietary care plans; 
Consult with physicians to determine nutritional needs and diet restrictions; 
Monitor food preparation to ensure conformance to nutritional guidelines, safety and quality; 
Inspect meals served for conformance to prescribed diet; 
Take care of periodic check-ups of the child; 
Keep track of the child's health condition; and 
Develop new menus for the child according to his tastes and likings. 
The petitioner does not state that it requires a degree in any particular specialty for entry into the proffered 
position, but finds the beneficiary qualified by virtue of her foreign education which is deemed by a 
credentials evaluation service to be equivalent to a Bachelor of Science degree in Health Science and 
Nutrition from an accredited college or university in the United States. 
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 
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of the proffered position are essentially those noted for dietitians and nutritionists. Dieticians and nutritionists 
plan food and nutrition programs and supervise the preparation and serving of meals. They help to prevent and 
treat illnesses by promoting healthy eating habits and recommending dietary modifications. These professionals 
also consult with doctors and other healthcare workers to coordinate medical and nutritional needs. These are the 
duties that the beneficiary will perform in a private setting on behalf of the petitioner's minor child. The 
Handbook indicates that dietitians and nutritionists need at least a bachelor's degree in dietetics, foods and 
nutrition, food service systems management or a related area. The proffered position does, therefore, meet the 
criterion set forth at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I). 
The final issue to be considered is whether the beneficiary qualifies to perform the duties of a specialty 
occupation. The director did not address that issue as she denied the petition on other grounds. The record is, 
however, sufficient for the AAO to make that determination. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 11 84(i)(2), states that an alien applying for classification as an H-1B 
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. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, the alien 
must meet one of the following criteria: 
(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. 
The record establishes that the beneficiary's foreign education is the equivalent of a Bachelor of Science 
degree in Health Science and Nutrition from an accredited college or university in the United States. 8 C.F.R. 
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8 214.2(h)(4)(iii)(C)(2). The state of New York does not require licensure to practice in the field of nutrition. 
Certification is not required unless the beneficiary holds herself out as a certified nutritionist or certified 
dietician. The beneficiary is, therefore, qualified to perform the duties of the position. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 136 1. The petitioner has sustained that burden. 
ORDER: The appeal is sustained. The petition is approved.