sustained H-1B Case: Web Design

identi fglng data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PIJBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 192 50782 Office: CALIFORNIA SERVICE CENTER Date: 2 0 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
. Immigration and Nationality Act, 8 U.S.C. 5 1 10l(a)( lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
'& Administrative R%~~v Appeals 
WAC 04 192 50782 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be sustained. The petition will be 
approved. 
The petitioner is an advertisingldesign company. It seeks to employ the beneficiary as a website designer 
and to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
lOl(a)( lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)( 15)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as a specialty occupation. 
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. 
As provided in 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. 
$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 notice of intent to deny (NOD); (3) the petitioner's response to the NOID; (4) the notice of 
decision; and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record 
in its entirety before issuing its decision. 
WAC 04 192 50782 
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In its initial submission, including Form 1-129 and an accompanying letter, the petitioner described itself 
as an advertising and marketing company established in 1998 - with six employees and gross annual 
income of $600,000 - that provides its clients a variety of services in advertising, graphic design, website 
design, print materials, photography, videography, trade show booths, motion graphics, multimedia, 
commercials, press releases, and editorial support. The petitioner stated that, in order to meet the demand 
of e-commerce related advertising, it needed to hire "an additional web site designer to design, update and 
maintain our clients' websites." The petitioner indicated that the position requires education and 
experience in the areas of website design and programming, visual basic, Adobe Photoshop, Adobe 
Illustrator, and other graphic-related design software. The beneficiary is qualified for the position, the 
petitioner declared, by virtue of his bachelor of arts degree in advertising from Pepperdine University in 
Malibu, California, granted in April 2003, as well as his work as assistant to the webrnaster at Pepperdine 
University, where he assisted in updating and maintaining the law school website. 
The job description submitted with the petition describes the duties of the website designer as follows: 
Utilizes knowledge of fine arts, graphic design and various graphical software tools and 
technologies (including HTML, ASP and Java scripting, Adobe Photoshop and 
Illustrator) to design and develop web graphics for corporate clients of an 
advertisingtdesign office. Incorporates graphic scripts, conceptualizes graphical 
interface, and integrates video, animation, still images, text and audio into the graphical 
design of web pages. 
Transforms graphic concepts into specific web pages, makes changes to web sitelpages 
based on feedback from customers, works closely with the advertising director to create 
visually stunning designs that distinctly communicates the client's objective in the field. 
Stays abreast of any industry-wide changes in design philosophy and any new tools and 
technologies being used for web design. Performs quality assurance checks to ensure 
usability across multiple platforms. 
In its response to the NOID, the petitioner asserted that the duties of the proffered position include 
complex graphic design functions which reflect the duties of a web graphic designer, not just a web 
designer. According to the petitioner, the position falls under the occupational sub-category of graphic 
designers, as described in the Department of Labor (D0L)'s Occupational Outlook Handbook 
(Handbook). The petitioner interprets language in the Handbook discussing the educational 
recommendations for graphic designers as indicating that a baccalaureate or higher degree in fine arts, 
business, merchandising, marketing, psychology or a related field such as advertising is a prerequisite for 
such positions, thus making graphic designers a specialty occupation under the Act. 
The director found that the proffered position falls within the DOL Handbook's broad occupational 
category of "computer systems analysts, database administrators, and computer scientists" - in particular, 
the occupational sub-category of web designers - and concluded, based on language in the Handbook 
focusing on webmasters, that such a position does not require a baccalaureate degree in a specific 
specialty. The director declared that the petitioner's claim, in response to the NOID, that the proffered 
position is similar to that of a graphic designer represented an amendment to the petition, because it 
materially changed the original description of the position. Citing applicable regulations and case law, 
the director stated that the amended description of the position could not be considered in deciding the 
WAC 04 192 50782 
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petition. The director found that the proffered position did not qualify as a specialty occupation under 
any of the criteria enumerated in the regulation at 8 C.F.R $ 214.2(h)(4)(iii)(A). 
On appeal counsel asserts that the director erred in finding that the proffered position is that of a web 
designer, rather that a web graphic designer. Counsel maintains that the categorization of the position as 
a web graphic designer in the petitioner's response to the NOID is consistent with the duties of the 
position set forth in the original job description, and therefore does not represent a material change to or 
amendment of the petition. In counsel's view, the duties of the proffered position more closely resemble 
those of a graphic designer, as described in the Handbook, than they do the narrower occupation of web 
designer. According to counsel, the proffered position meets all four alternative criteria of a specialty 
occupation at 8 C.F.R $ 214.2(h)(4)(iii)(A). 
The AAO agrees with counsel that adding "graphic" to the position's title in the response to the NOID did 
not materially change the petition because it simply reflects the duties of the position originally described 
by the petitioner. Accordingly, there has been no amendment to the petition. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 
712 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
Graphic designers, an occupational sub-category of designers, are described in the Handbook, 2004-05 
edition. at 242: 
Graphic designers plan, analyze, and create visual solutions to communications 
problems. They use a variety of print, electronic, and film media and technologies to 
execute a design that meet clients' communication needs. They consider cognitive, 
cultural, physical, and social factors in planning and executing designs appropriate for a 
given context. Graphic designers use computer software to develop the overall layout 
and production design of magazines, newspapers, journals, corporate reports, and other 
publications. They also produce promotional displays and marketing brochures for 
products and services, design distinctive logos for products and businesses, and develop 
signs and signage systems - called environmental graphics - for business and 
government. An increasing number of graphic designers are developing material for 
Internet Web pages, computer interfaces, and multimedia projects. Graphic designers 
also produce the credits that appear before and after television programs and movies. 
The AAO determines that the duties of the proffered position are reflected in the foregoing occupational 
description, especially in its reference to graphic designers developing material for Internet Web pages. 
Based on the petitioner's description of the proffered position, the other documentation of record, and the 
. 
WAC 04 192 50782 
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Handbook information quoted above, the AAO concludes that the web graphic designer position at issue 
in this petition is a type of graphic designer. The AAO also concludes that the proffered position qualifies 
as a specialty occupation under the regulation at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(4) because the duties of 
the position are so specialized and complex that the knowledge required to perform them is usually 
associated with a baccalaureate or higher degree in a job-related specialty. 
To be qualified to perform services in a specialty occupation, the beneficiary must meet one of the 
following criteria enumerated in 8 C.F.R. 8 2 14.2(h)(4)(iii)(C): 
(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, 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. 
As previously indicated, the beneficiary has a bachelor of arts degree in advertising from Pepperdine 
University in Malibu, California. The record includes the beneficiary's transcript from the university 
showing that her coursework included advertising fundamentals, advertising media, communication graphics, 
advertising copywriting and layout, advertising research, advertising campaign management, graphic design, 
computer animation, and advanced computer graphics. The AAO determines that all of these courses are 
directly related to, and required by, the proffered position of web graphic designer. The AAO concludes, 
therefore that the beneficiary qualifies under 8 C.F.R. 8 214.2(h)(4)(iii)(C)(I) to perform the services of the 
specialty occupation. 
Thus, the record establishes that the proffered position is a specialty occupation and that the beneficiary is 
qualified to perform the services of that occupation. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has met that burden. Accordingly, the AAO will sustain the appeal and approve the petition. 
ORDER: The appeal is sustained. The petition is approved.