H-1B Business Immigration

8/10/2019 H-1B Business Immigration

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8/14/2014 Vol 1 - Ch 7 - H-1B Visas and Status

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/ AILA Books / Business Publications / Business Immigration-Law and Practice [ 2011] / Vol 1 - Ch 7 - H-1B Visas and Status

Vol 1 - Ch 7 - H-1B Visas and Status[ AILAs Business Immigration: Law & Practice 463 (AILA 2011)]

I. Executive Summary

The H-1B classification allows foreign nationals to accept professional assignments with U.S. employers, after the employer has obtained an approved labor condition application from the Department of Labor (DOL). H-1B dependent employers have additional obligations. There is an annual numerical limitation of 65,000 for H-1B visas, with an additional 20,000 H-1B visas for foreign nationals holding U.S. advanced degrees. An H-1Bpetition may be valid for up to three years. A foreign national may change H-1B employers. The nonimmigrantmay simultaneously pursue permanent residence while holding H-1B status. Recapture of H-1B time is alsoavailable. H-1B petitions may be extended for an additional period of up to three years, to a maximum of sixyears in H-1B status. Limited exceptions allow for continued H-1B extensions until the foreign national obtainspermanent residence. Dependent spouses and children of H-1B nonimmigrants hold H-4 status.

A. Checklist of Requirements

Professional assignment

Beneficiary qualifies for the specialty occupation

H-1B visa number available for an initial petition

Employer attestations on a labor condition application

Valid employment relationship

Additional filing fees

No labor dispute in progress at the worksite for the occupation

B. Documents Necessary to Prepare the Petition

Job description, including employment period and job requirements, if any

Copies of the foreign nationals educational and/or experience credentials, including transcripts

Copy of foreign nationals rsum

Basic information about the company

Copy of biographic page(s) of passport(s) of the foreign national and any dependent spouse andchildren

C. Checklist of Questions to Ask the Client

Does the job qualify as a profession and/or specialty occupation, or require licensure? Page 464

Does the beneficiary have at least a four-year Bachelors degree? Alternatively, does he or she


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qualify for the job through a combination of education, experience, and/or training?

Is the employer an educational or non-profit organization?

Is the petition an H-1B dependent employer?

Does the petitioner know of other H-1B petition(s) that may be filed by other employers on behalf of the beneficiary during cap season?

Was the beneficiary previously awarded an H-1B visa number and/or held H-1B status?

Will the employer agree to and abide by the labor condition application attestations?

Did the employer comply with the requirement to post notice of the labor condition application at theproposed worksite, even if it is a third-party worksite?

Will the job involve temporary or permanent placement at a third-party worksite?

Will the petitioner have the right to control the beneficiary?

Is the petitioner an agent?

Will there be multiple worksites or employers?

Is there a labor dispute at the worksite of the proposed H-1B assignment?

Is the foreign national a beneficiary of a labor certification application or immigrant visa petition?

II. Requirements and Interpretations

The statute defines H-1B status as being available to a foreign national who will temporarily perform services in a specialty occupation, as long as the Secretary of Labor determines and certifies to the AttorneyGeneral that the intending employer has filed with the [DOL] Secretary a labor condition application, asdiscussed below. This definition replaced the previous standard of distinguished merit or ability, in 1990,through the enactment of the Immigration Act of 1990 (IMMACT90), although the former standard applies tofashion models. The H-1B services may not entail agricultural labor pursuant to H-2A status or activitiesappropriate to O or P status. As explained by U.S. Citizenship and Immigration Services (USCIS):

INA 101(a)(15)(H)(i)(b) ; 8 CFR 214.2(h)(1)(i) . INA 101(a)(15)(H)(i)(b) ; 8 CFR 214.2(h)(1)(ii)(B)(1) . Immigration Act of 1990, Pub. L. No. 101-649, 205(c), 104 Stat. 4978 (Nov. 29, 1990). For background on

the previous standard, see 55 Fed. Reg. 2606 (Jan. 26, 1990); Matter of Shaw , 11 I&N Dec. 277 (D.D. 1965).

Adjudicators Field Manual (AFM) ch. 31.1(b): Background. INA 101(a)(15)(H)(i)(b) ; 8 CFR 214.2(h)(1)(ii)(B)(1) .

The Immigration Act of 1952 established a new nonimmigrant class of temporary workers. In these provisions,Congress sought to grant the Attorney General sufficient authority to admit temporarily certain alien workers,industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or maydevelop in certain areas or certain branches of American productive enterprises, particularly in Page 465periods of intensified production. Prior to 1989, there were three H nonimmigrant worker classifications. TheH-1 category included all persons of distinguished merit and ability which was generously interpreted toinclude all persons engaged in occupations which required a bachelors degree or equivalent.

AFM ch. 31.1(b): Background.

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USCIS acknowledged that the regulations and other guidance on H-1B petitions are detailed and somewhatcomplex, because the requirements of the statute itself are complex. Numerous statutory and regulatoryamendments and additions have resulted in what appears to be a constantly shifting landscape. This chapter seeks to provide a comprehensive overview of the issues and potentially applicable strategies, including thoseutilized under previous standards. Therefore, although USCIS guidance directs adjudicators against rely[ing]on pre-IMMACT precedent case law for guidance on specialty occupations, this chapter discusses theseolder BIA cases because they still have value for background.

AFM ch. 31.2(a): General Requirements for H Petitions.

AFM ch. 31.3(a): H-1B Classification and Documentary Requirements.This chapter will not, however, discuss in detail H-1B status for fashion models and individuals providingservices for Department of Defense (DOD) projects. A fashion model may also obtain H-1B status, either byhaving distinguished merit or ability, or by meet[ing] the requirements for the [specialty] occupation,relating to licensure, completion of a degree, or possession of experience in the specialty equivalent to thecompletion of such degree, and recognition of expertise in the specialty through progressively responsiblepositions relating to the specialty. H-1B status is also available for individuals who will perform servicesrelating to a Department of Defense (DOD) cooperative research and development project or coproductionproject.

INA 101(a)(15)(H)(i)(b) ; Miscellaneous and Technical Immigration and Naturalization Amendments of 1991,

Pub. L. No. 102-232, 207(b) 105 Stat. 1733 (Dec. 12, 1991); 8 CFR 214.2(h)(1)(i) and 214.2(h)(1)(ii)(B)(3). INA 101(a)(15)(H)(i)(b) (citing INA 214(i)(2) ). INA 214(i)(2) . 8 CFR 214.2(h)(1)(i) . See also 8 CFR 214.2(h)(1)(ii)(B)(2), 214.2(h)(4)(i)(A)(2) , and 214.2(h)(4)(i)(A)

(3).

As stated by regulation: The employer must file a petition with the Service for review of the services or training and for determination of the aliens eligibility for classification as a temporary employee or trainee,before the alien may apply for a visa or seek admission to the United States. The H-1B petition is filed onForm I-129, as discussed below. An H-1B petition shall be made and approved before the visa is granted,but approval of such a petition shall not, of itself, be construed as establishing that the alien is anonimmigrant. A statute provides that the question of importing any alien as a nonimmigrant in H-1Bstatus in any specific case or specific cases shall be determined by the Attorney General, after consultationwith appropriate agencies of the Government, upon petition of the importing employer. Page 466

8 CFR 214.2(h)(1)(i) . 8 CFR 214.2(h)(2)(i)(A) . INA 214(c)(1) . Id .

An H-1B petition must name only a single beneficiary. A foreign national may hold H-1B status for up to sixyears, with certain key exceptions, as discussed below. USCIS has indicated separate requests must bemade for H-1B status and Temporary Protected Status (TPS): TPS is not granted in conjunction with H-1B.If the individual would like to hold TPS and H-1B status, he or she may do so, but the individual will need tocomply with the terms and conditions for each status. The requirements of H-2 status should not be appliedto H-1 status. The dependent spouse and children of an H-1B nonimmigrant may obtain H-4 nonimmigrantstatus.

8 CFR 214.2(h)(2)(ii) (the regulation does not state that multiple beneficiaries may be named on a singleH-1B petition) and 214.2(h)(2)(iii).

INA 214(g)(4) . Q & A Stakeholder Conference (Sept. 20, 2010 and updated Oct. 19, 2010), published on AILA InfoNet a

Doc. No. 10101471 ( posted Oct. 19, 2010). This document has an extended discussion of theinterrelationship of TPS and H-1B status.

Matter of Essex Cryogenics Industries, Inc. , 14 I&N Dec. 196 (Dep. Asso. Commr 1972). 8 CFR 214.2(h)(9)(iv) ; 9 Foreign Affairs Manual (FAM) 41.53 N17.1 (dependents of H-1B nonimmigrants

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may obtain H-4 status).

H-1B1 status is available to citizens of Chile and Singapore, pursuant to Free Trade Agreements, who willengage in specialty occupations. A labor condition application (LCA) must be certified by DOL to theDepartment of Homeland Security (DHS) and the Department of State (DOS). An initial H-1B1 petition maybe approved for up to one year and may be extended, as discussed below. Also discussed below, an H-1B1petition does not need to be filed with USCIS; the foreign national may apply for an H-1B1 visa at a U.S.consulate abroad.

INA 214(g)(8)(A) ; United StatesChile Free Trade Agreement Implementation Act, Pub. L. No. 108-77 ,402 (Sept. 3, 2003); United StatesSingapore Free Trade Agreement Implementation Act, Pub. L. No. 108-78, 402 (Sept. 3, 2003).

INA 214(g)(8)(A) and 101(a)(15)(H)(i)(b)(1) (citing INA 214(g)(8)(A)); United StatesChile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, 402 (Sept. 3, 2003); United StatesSingapore FreeTrade Agreement Implementation Act, Pub. L. No. 108-78, 402 (Sept. 3, 2003).

INA 101(a)(15)(H)(i)(b)(1) . Id . INA 214(g)(8)(C) . 9 FAM 41.53 N27.2; 69 Fed. Reg. 68221 (Nov. 23, 2004) (noting that the [d]eterminations of specialty

occupation and of nonimmigrant qualifications are made by Department of State (DOS) and/or USCIS).

A. Profession and Specialty OccupationIn the list of nonimmigrant aliens, the statute defines the H-1B visa classification as available for a foreignnational who will perform services in a specialty occupation. First and foremost, the practitioner should confirm that both the job and the beneficiary qualify for when exploring whether H-1B status isappropriate, as discussed in further detail in the following sections.

INA 101(a)(15)(H)(1)(b) .

1. Profession

The statute defines profession as including but not limited to architects, engineers, lawyers,physicians, surgeons, and teachers in elementary or secondary schools, colleges, Page 467academies, or seminaries. By way of background, the term profession has been formerly describedas:

INA 101(a)(32) .

[C]ontemplat[ing] knowledge or learning, not merely skill, of an advanced type in a givenfield gained by a prolonged course of specialized instruction and study of at leastbaccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor.

[R]equir[ing] a standard and at least baccalaureate level of university education for practice, in which that education is used and applied, and which requires extensive

autonomous application of individual professional knowledge to particular fact situations.[E]ncompass[ing] constantly expanding areas of activity consistent with the greater knowledge and specialized training a highly industrialized society demands. In addition tovarious scientific fields, highly specialized activities in business administration, finance,management, and the like require training gained only by an extended course of specialized instruction and study of at least the baccalaureate level. The term professionoriginally contemplated only theology, law and medicine. However, as applications of science and learning were extended to other areas of human endeavor, other vocationswere included in that term, which implies professed attainments in special knowledge asdistinguished from mere skill.

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Matter of Sea. Inc. , 19 I&N Dec. 817 (Commr 1988) (citing former INA 101(a)(32) and Matter of Ling , 13I&N Dec. 35 (Regl Commr 1968)).

Matter of Portugues Do Atlantico Information Bureau, Inc. , 19 I&N Dec. 194 (Commr 1984). Matter of Sun , 12 I&N Dec. 535 (D.D. 1966).

The Board of Immigration Appeals (BIA) also noted the following interpretation stated by the U.S.Supreme Court: The word implies professed attainments in special knowledge, as distinguished frommere skill, a practical dealing with affairs, as distinguished from mere study or investigation; and anapplication of such knowledge to uses for others, as a vocation, as distinguished from its pursuit for its

own purposes. In general, H-1B status is appropriate for an individual who: Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988) (citing U.S. v. Laws , 63 U.S. 258

(1896)).

Will perform services in a specialty occupation which requires theoretical and practicalapplication of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation inthe United States, and who is qualified to perform services in the specialty occupationbecause he or she has attained a baccalaureate or higher degree or its equivalent in thespecialty occupation.

8 CFR 214.2(h)(4)(i)(A)(1) .

Importantly, the list of the vocations included in the term profession in our modern highly industrializedsociety are constantly expanding, consistent with the greater knowledge and specialized training thatsuch a society demands. Specifically: Page 468

Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988) (quoting Matter of Shin , 11 I&N Dec. 686(D.D. 1966)).

The Service also recognizes that some occupations may be in transition fromnonprofessional to professional status. In these transitional occupations, it may be possiblefor some employers to establish the professional nature of positions by demonstrating thatthey have consistently required the higher standard of a specific baccalaureate or advanced degree for the more complex positions within their organizations.

The occupations included in the professions are not limited to these few groups [listedabove], and, in fact, the overall number and specific occupations which fall within thisdefinition are constantly changing due to technological advances and due to changes inlabor practices.

Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988). Matter of Michael Hertz Associates , 19 I&N Dec. 558 (Commr 1988) (overruling Matter of Huckenbeck , 13

I&N Dec. 118 (Regl Commr 1969)).

The transition of an occupation may be driven by the ever-increasing need for more sophisticated

and specialized expertise, and/or material and substantial changes in the requirements for qualification and registry in th[e] field. A petitioner may be able to establish the job requirements for an occupation have changed by submitting a DOL job description, discussed below, a statement froma relevant professional association, documents from other employers within the industry, articles,affidavits, and/or printouts from job postings of other employers. It may be necessary to distinguishthe specialty occupation from other, related fields.

Matter of Villanueva , 13 I&N Dec. 733 (Dep. Asso. Commr 1971) (overruling Matter of Ancheta , 12 I&N Dec785 (Regl Commr 1968)).

Matter of Villanueva , 13 I&N Dec. 733 (Dep. Asso. Commr 1971) (overruling Matter of Ancheta , 12 I&N Dec785 (Regl Commr 1968)); Matter of Panganiban , 13 I&N Dec. 581 (Dep. Asso. Commr 1970); Matter of Reyes , 13 I&N Dec. 406 (Regl Commr 1969) (overruling Matter of Cruz , 13 I&N Dec. 61 (Regl Commr

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1968)); Matter of Perez , 12 I&N Dec. 701 (D.D. 1968). Cf . Matter of [name not provided] WAC 02 220 54035(AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the righttoolbar under More Information, D8, and then search by date and for 04D8101) (While a bachelorsdegree in a construction-related specialty may be increasingly favored by large companies, it is not anindustry standard for entry into the occupation). This decision is erroneously posted online in the category for O status.

Cf . Matter of [name not provided] WAC 02 220 54035 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D8, and thensearch by date and for 04D8101) (reliance on Occupational Outlook Handbook (OOH) to determine that

there has been no change in qualifications). This decision is erroneously posted online in the category for Ostatus. Matter of Michael Hertz Associates , 19 I&N Dec. 558 (Commr 1988) (overruling Matter of Huckenbeck , 13

I&N Dec. 118 (Regl Commr 1969)); Matter of Desai , 17 I&N Dec. 569 (Regl Commr 1980) (statements fromprofessional association, industry professionals, and the director of an educational program); Matter of Essex Cryogenics Industries, Inc. , 14 I&N Dec. 196 (Dep. Asso. Commr 1972) (statement from professionalassociation with corroboration from the accrediting authority for educational programs of the field); Matter ofPanganiban , 13 I&N Dec. 581 (Dep. Asso. Commr 1970) (overruling Matter of Asuncion , 11 I&N Dec. 660(Regl Commr 1966) (OOH job description)).

Matter of Villanueva , 13 I&N Dec. 733 (Dep. Asso. Commr 1971) (medical record librarians have differentob requirements and duties from medical record technicians) (overruling Matter of Ancheta , 12 I&N Dec. 785(Regl Commr 1968)).

As noted below, business specialties are included in the list of fields of specialty occupations.However, it seems that the general field of business management may not Page 469 qualify as aprofession, even though they may fall within the category of transitional occupations:

Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988).

In fact, general managerial occupations such as those of vice-president are normally not considered to be professional endeavors requiring specific academic degrees. A manager is not considered to be a member of the professions unless he or she is qualified for, andintends to work in, a professional occupation requiring the attainment of such a degree.While the recent edition of the Occupational Outlook Handbook [OOH] reflects that higher

education is becoming increasingly prevalent among managers and executives, it does notestablish that at least a baccalaureate-level degree in a specific major or even a narrowrange of majors is required for all or most occupations within this broad field.

Business administration is a broad field, a field which contains various occupationsand/or professions, all of which are related to the world of business but each requiring adifferent academic preparation and experience peculiar to its needs. The [OOH], alsopublished by the Department of Labor, shows that business administration is a generalterm and includes various occupations such as accountant, advertising workers, industrialtraffic manager, marketing research workers, personnel workers, and purchasing agents;thus, including both professional and nonprofessional activities. Careful review of thediscussion of these occupations shows that while all are related to the world of business,

each has its own emphasis on the academic training and experience required for qualification in that occupation. It is evident that while a person may have a degree inbusiness administration, such degree may qualify him for some but not all of theoccupations included in the broad field of business administration. Therefore, apetitioner with a business administration degree must clearly establish a particular areaand occupation in the field of business administration in which he is engaged or plans to beengaged and must also establish that he meets the special academic and experiencerequirements of that designated activity, as a prerequisite to a determination as toprofessional status.

Id. (emphasis in original). Matter of Ling , 13 I&N Dec. 35 (Regl Commr 1968); Matter of [name not provided] LIN 04 257 51922 (AAO

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Feb. 10, 2005), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D2, and then search by date and for 07D2101).

For discussion of an alternative strategy for business occupations, see below. The practitioner shouldalso note that a job is not considered a profession merely because the beneficiary has earned adegree: The attainment of an undergraduate degree is a material requisite to qualifying only wheresuch degree is a minimum and realistic prerequisite for entry into a profession.

Matter of General Atomic Co. , 17 I&N Dec. 532 (Commr 1980) (internal citation omitted).

2. Specialty Occupation

For H-1B and H-1B1 petitions, the term specialty occupation is, in turn, defined as an occupation thatrequires the following: Page 470

The theoretical and practical application of a body of highly specialized knowledge; and

The attainment of a bachelors or higher degree in the specific specialty (or its equivalent) as aminimum for entry into the occupation in the United States.

INA 214(i)(1) and (3); Immigration Act of 1990, Pub. L. No. 101-649, 205(c), 104 Stat. 4978 (Nov. 29,1990).

The appropriate fields of human endeavor for specialty occupations may include, but are not limitedto, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health,education, business specialties, accounting, law, theology, and the arts. The practitioner should notethat this list is similar to the list of professions, although teaching is on the list of professions, but not onthe list of fields of human endeavor. For discussion of H-1B status for nurses, see below.

8 CFR 214.2(h)(4)(ii) .

The regulations provide further guidance on the requirements of a specialty occupation, where theposition must meet one of the following criteria, discussed in more detail in the following sections:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entryinto the particular position;

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 socomplex or unique that it can be performed only by an individual with a degree;

The employer normally requires a degree or its equivalent for the position; or

The nature of the specific duties [is] so specialized and complex that knowledge required toperform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR 214.2(h)(4)(iii)(A).

The H-1B petition must include [d]ocumentation, certifications, affidavits, declarations, degrees,diplomas, writings, reviews, or any other required evidence sufficient to establish that the services thebeneficiary is to perform are in a specialty occupation. This evidence may include [c]opies of anywritten contracts between the petitioner and beneficiary, or a summary of the terms of the oralagreement under which the beneficiary will be employed, if there is no written contract.

8 CFR 214.2(h)(4)(iv)(A). See also Matter of Doultsions , 12 I&N Dec. 153 (D.D. 1967) (statement from anaccounting professor regarding the field of accountancy).

8 CFR 214.2(h)(4)(iv)(B) .

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The adjudicator should [c]onsider all the information provided by the petitioner in making [the] decisionas to whether or not the position qualifies as a specialty occupation. USCIS guidance notes whenevaluating whether the job qualifies as a specialty occupation, approval or denial often comes down toa judgment call by the adjudicating officer. In addition: Page 471

USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.07072668 ( posted July 26, 2007).

If significant doubts exist regarding the beneficiarys work experience, the adjudicator

officer may request an overseas investigation or refer the case to the appropriate localICE office for interview, field examination, or local investigation. Such investigationsshould not be routinely requested, but can be used when all other avenues have beenexplored and there is still serious doubt about claimed experience.

AFM ch. 31.3(g): H-1B Classification and Documentary Requirements (internal citations omitted).

However, obtaining an approved labor condition application in an occupational classification does notconstitute a determination by that agency that the occupation in question is a specialty occupation.Rather, USCIS shall determine if the application involves a specialty occupation [and] shall alsodetermine whether the particular alien for whom H-1B classification is sought qualifies to performservices in the specialty occupation. For further discussion of the LCA, see below, and Chapter Six,The Labor Condition Application.

8 CFR 214.2(h)(4)(i)(B)(2); AFM ch. 31.3(b): H-1B Classification and Documentary Requirements. 8 CFR 214.2(h)(4)(i)(B)(2). See also 20 CFR 655.715 (Determinations of specialty occupation and of

nonimmigrant qualifications for the H-1B and H-1B1 programs are not made by the Department of Labor, butby the Department of State and/or United States Citizenship and Immigration Services (USCIS) of theDepartment of Homeland Security in accordance with the procedures of those agencies for processing visas,petitions, extensions of stay, or requests for change of nonimmigrant status for H-1B or H-1B1nonimmigrants).

For citizens of Chile seeking H-1B1 status, additional occupations that qualify as specialty occupationsare Disaster Relief Claims Adjuster, Management Consultant, Agricultural Manager, and PhysicalTherapist. For citizens of Singapore seeking H-1B1 status, additional occupations that qualify asspecialty occupations are Disaster Relief Claims Adjuster and Management Consultant. For discussion of alternative qualifications for these occupations, see below.

20 CFR 655.715. Id .

a. A Degree Is Normally a Minimum Requirement for the Occupation

Stated simply, the H-1B classification requires that the occupation itself normally require at least aBachelors degree, based on the duties to be performed:

Consideration of a claim to such eligibility [for H-1B status] first focuses on the tasks,

demands, duties, and actual requirements of the position in question. A petitioner must establish that the position realistically requires knowledge, both theoretical andapplied, which is almost exclusively obtained through studies at an institution of higher learning. The depth of knowledge and length of studies required are best typified by adegree granted by such institution at the baccalaureate level.

Matter of Michael Hertz Associates , 19 I&N Dec. 558 (Commr 1988).

Also, it is not sufficient to simply establish that a bachelors degree or higher degree is a minimumfor entry into the occupation, the position must require a degree in a specific specialty. LegacyINS noted its interpretation over the years required that Page 472 the degree be awarded for academic study in a specific discipline or narrow range of disciplines, and this is confirmed by the

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Administrative Appeals Office (AAO): Citizenship and Immigration Services (USCIS) consistentlyinterprets the term degree to mean not just any baccalaureate or higher degree, but one in aspecific specialty that is directly related to the proffered position. The BIA stated:

USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.07072668 ( posted July 26, 2007) (citing INA 214(i)(1) ); Fred 26 Importers, Inc. v. USCIS , 445 F. Supp. 2d1174 (C.D. Cal. 2006) (USCIS and AAO denial).

55 Fed. Reg. 2606 (Jan. 26, 1990); Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988)(internal citations omitted).

See, e.g. , Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D2,and then search by date and for 02D2101) (denial where, inter alia, the OOH indicates that a wide varietyof courses will prepare a person to perform the duties of a market research analyst); Matter of [name not

provided] EAC 06 216 52028 (AAO Sept. 8, 2006), available at www.uscis.gov (select Laws, AdministrativeDecisions link on the right toolbar under More Information, D2, and then search by date and for 06D2101)(USCIS denial); Matter of [name not provided] WAC 03 232 53697 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D8,and then search by date and for 03D8101). This decision is erroneously posted online in the category for Ostatus.

It must be demonstrated that the position requires a precise and specific course of study which

relates directly and closely to the position in question. Since there must be a close corollary betweenthe required specialized studies and the position, the requirement of a degree of generalized title,such as business administration or liberal arts, without further specification, does not establisheligibility. The mere requirement of a college degree for the sake of general education, or to obtainwhat an employer perceives to be a higher caliber employee, also does not establish eligibility.


Similarly, a job is not deemed a specialty occupation merely because it requires managing other managers; the petition must demonstrate that the proposed duties involve significant supervision or quality review over the work of professional employees so as to make the holding of professionalcredentials mandatory.

Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988); Matter of [name not provided] LIN 04257 51922 (AAO Feb. 10, 2005), available at www.uscis.gov (select Laws, Administrative Decisions link onthe right toolbar under More Information, D2, and then search by date and for 07D2101) (stating that themanagement of professionals is not necessarily an indication of a specialty occupation position).

At the very least, the H-1B petition should include a detailed description of the job duties to beperformed, ideally in non-technical terminology, since the adjudicator may request this informationin a Request for Evidence (RFE), and this would delay processing. As explained by the AAO, ageneric job description is not helpful:

USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.07072668 ( posted July 26, 2007) (emphasis in original).

The duties described neither relate specific work that the beneficiary would perform,elucidate concrete business matters of this particular petitioner that would be the focusof that work, nor exemplify how performance of that work upon those matters wouldrequire the theoretical and practical application of at least a bachelors level of a highlyspecialized body of knowledge. Consequently, because the proposed duties are limitedto generic terms that do not relate what they involve in actual performance to thisspecific Page 473 petitioners particular business matters, the petitioner has notprovided sufficient information to satisfy any of the specialty occupation criteria.

Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search by

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date and for 02D2101). See also Matter of [name not provided] WAC 07 151 50781 (AAO June 3, 2008),available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under MoreInformation, D2, and then search by date and for 01D2101); Matter of [name not provided] LIN 04 25751922 (AAO Feb. 10, 2005), available at www.uscis.gov (select Laws, Administrative Decisions link on theright toolbar under More Information, D2, and then search by date and for 07D2101).

A detailed job description is particularly important if the beneficiary will provide services for a client or customer of the petitioner, because, as discussed below, third-party placements are closelyscrutinized. In one case, the AAO observed that the absence of specificity regarding the

beneficiarys particular work to be done for either client made it impossible for [US]CIS todetermine whether the actual performance requirements of the proffered position support thepetitioners claim that the position is a specialty occupation.

Matter of [name not provided] WAC 03 232 53697 (AAO Feb. 3, 2006), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D8, and then search bydate and for 03D8101). This decision is erroneously posted online in the category for O status.

(1). DOL Job Description

The practitioner may also wish to include DOL job descriptions because USCIS guidanceencourages adjudicators to consider them:

There are numerous references available (such as the DOLs Occupational OutlookHandbook) to describe specific vocational preparation for various occupations.

A good reference for determining if a position meets specialty occupation criteria isthe Department of Labors Occupational Outlook Handbook (OOH). The OOHoutlines the duties normally performed by an occupation, and its basic educationaland experience requirements.

Factors considered by the AAO when determining this criterion include whether theDepartment of Labors Occupational Outlook Handbook (Handbook) , on which thePage 474 AAO routinely relies for the educational requirements of particular occupations, reports that the industry requires a degree. The AAO recognizes the[OOH] as an authoritative source on the duties and educational requirements of awide variety of occupations.

AFM ch. 31.3(g): H-1B Classification and Documentary Requirements. USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.

07072668 ( posted July 26, 2007). OOH, available at www.bls.gov/oco/ . See also Matter of De Vera , 13 I&NDec. 340 (D.D. 1969) (The views of the United States Department of Labor in setting the minimumeducational requirements for dieticians as professional and kindred, must be given considerable weight);Matter of Doultsions , 12 I&N Dec. 153 (D.D. 1967) (reliance on OOH to classify an occupation asprofessional); Matter of Roldan , 11 I&N Dec. 869 (D.D. 1966) (reliance on ( Dictionary of Occupational Titles(DOT) and OOH to classify an occupation as professional); Matter of [name not provided] WAC 07 137 52988(AAO June 3, 2008), available at www.uscis.gov (select Laws, Administrative Decisions link on the righttoolbar under More Information, D2, and then search by date and for 02D2101) (OOH). Cf . Matter of [name not provided] WAC 02 220 54035 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws,Administrative Decisions link on the right toolbar under More Information, D8, and then search by date andfor 04D8101) (reliance on OOH to determine that there has been no change in qualifications). This decisionis erroneously posted online in the category for O status.

Matter of [name not provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 04D2101) (emphasis in original); Matter of [name not provided] EAC 06 216 52028 (AAO Sept.8, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D2, and then search by date and for 06D2101).

Matter of [name not provided] LIN 04 257 51922 (AAO Feb. 10, 2005), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search by

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date and for 07D2101).

The AAO also noted that consultation with the OOH is appropriate even if the occupation is notspecifically discussed in the OOH:

A petitioners assignment of a job title that is not included among the occupationaltitles described in the [OOH] does not preclude the possibility that the [OOH] wouldhave information relevant to the underlying duties. The director was correct toconcentrate on the proposed duties rather than the job title.

Id .

An alternative to the OOH is DOLs O*NET system online, which contains comprehensiveinformation on job requirements and worker competencies and captures changes in the workplace in terms that reflect the latest research in the field of job analysis. Reliance upon atemplate job description provided by O*NET information is advantageous because O*NETs SOC-Codes are also stated on the LCA, as discussed in Chapter Six, The Labor Condition Application,and USCIS is more likely to accept an occupational classification that has been accepted by DOL.In the alternative, the petitioner may wish to submit information from DOLs Dictionary of Occupational Titles (DOT), which, in turn, relies upon calculations of Specific VocationalPreparation (SVP), although the SVP should not be used as the sole determining factor inassessing whether or not a position qualifies as a specialty occupation. For further discussionof Page 475 the OOH, O*NET, and DOT and SVP, see Volume 2: Chapter Two, The Labor Certification Application.

O*NET Online, available at online.onetcenter.org . USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.

07072668 ( posted July 26, 2007). See alsoMatter of Wissen, Inc. , 2009-PER-00405 (BALCA Apr. 15, 2010)(The O*Net is a database containing information on hundreds of standardized and occupation-specificdescriptors) ( internal footnotes and citations omitted).

Matter of Sea. Inc. , 19 I&N Dec. 817 (Commr 1988). Cf . Matter of Caron International, Inc. , 19 I&N Dec. 791(Commr 1988) (stating that a reference in the DOT is not enough to establish the professional nature of anoccupation); Matter of Wu , 12 I&N Dec. 459 (D.D. 1967) (reliance on DOT to classify an occupation asprofessional); Matter of Sun , 12 I&N Dec. 535 (D.D. 1966) (same); Matter of Rabbani , 12 I&N Dec. 15 (D.D.1966) (same); Matter of Shin , 11 I&N Dec. 686 (D.D. 1966) (same); Matter of Roldan , 11 I&N Dec. 869 (D.D.1966) (reliance on DOT and OOH to classify an occupation as professional).

USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.07072668 ( posted July 26, 2007). DOT, available at www.oalj.dol.gov/libdot.htm . See also Matter of [name not

provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (select Laws, AdministrativeDecisions link on the right toolbar under More Information, D2, and then search by date and for 04D2101)(However, the AAO does not consider the DOT to be a persuasive source of information as to whether a jobrequires the attainment of a baccalaureate or higher degree (or its equivalent) in a specific specialty. DOTprovides only general information regarding the tasks and work activities associated with a particular occupation, as well as the education, training, and experience required to perform the duties of thatoccupation. It does not describe how those years are to be divided among training, formal education, andexperience and it does not specify the particular type of degree, if any, that a position would require); Matterof [name not provided] LIN 04 257 51922 (AAO Feb. 10, 2005), available at www.uscis.gov (select Laws,Administrative Decisions link on the right toolbar under More Information, D2, and then search by date andfor 07D2101).

Whichever DOL resource is used to classify the occupation, the job description shouldaccurately reflect[] the job duties to be performed. The DOL job description may in factindicate that a Masters degree rather than a Bachelors degree is the common requirement for entry into the profession. However, the practitioner is also strongly advised against allowing apetitioner to submit a job description that merely repeat[s] portions of the generalizeddescriptions found in the OOH because the petitioner should detail[] the actual work to beperformed for this position rather than describing the occupation. Details are key todemonstrate the duties attached to specific employment. As the Vermont Service Center

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(VSC) indicated:

USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.07072668 ( posted July 26, 2007).

Matter of Shin , 11 I&N Dec. 686 (D.D. 1966). Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (select

Laws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101); Matter of [name not provided] WAC 02 220 54035 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D8,

and then search by date and for 04D8101) (Though the petitioner recites some of the [OOHs] language onindustrial engineers in its list of the job duties, no specific information is provided about the tasks thebeneficiary performs on a daily basis). This decision is erroneously posted online in the category for Ostatus.

Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101); Matter of [name not provided] WAC 02 220 54035 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D8,and then search by date and for 04D8101). This decision is erroneously posted online in the category for Ostatus.

While a petitioner may provide a generic job description normally associated with a

position, the information should also be presented in a manner that provides a clear understanding of the services to be provided, rather than a recitation of the O*NETor Occupational Outlook Handbook.

AILA Liaison/VSC Meeting Minutes, (Jan. 21, 2009), published on AILA InfoNet at Doc. No. 09012768( posted Jan. 27, 2009).

(2). Focus on Job Duties

USCIS guidance directs adjudicators to [l]ook at each case individually and to avoid the habit of classifying based only on the job title. The practitioner is strongly advised to take the sameapproach: Page 476

USCIS document, I-129 H-1B Standard Operating Procedures, published on AILA InfoNet at Doc. No.07072668 ( posted July 26, 2007); Matter of [name not provided] WAC 02 220 54035 (AAO Feb. 3, 2006),available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under MoreInformation, D8, and then search by date and for 04D8101). This decision is erroneously posted online inthe category for O status (In determining the nature of a particular position and whether it is qualifies as aspecialty occupation, the duties actually performed are determinative, not the title of the position. Thepetitioner must establish that a specialty degree is required by the performance demands of the position).

[I]t is important to note that occupations are rapidly evolving and job titlesthemselves are often meaningless. In order to correctly adjudicate a case, it isnecessary to consider all the facts surrounding the petition: the beneficiaryseducation and work experience, the nature of the petitioners business, industrypractice, and salary (both offered to the beneficiary and typical for the industry). It isimportant not to be so influenced by a single factor, such as the job title or salary,that other indicators are overlooked.

To determine whether a particular job qualifies as a specialty occupation, [US]CISdoes not simply rely on a positions title. The specific duties of the proffered position,combined with the nature of the petitioning entitys business operations, are factorsto be considered. [US]CIS must examine the ultimate employment of the alien, anddetermine whether the position qualifies as a specialty occupation.

AFM ch. 31.3(g): H-1B Classification and Documentary Requirements. Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (select

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Laws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101) (internal citation omitted).

In one case, USCIS indicated that, based on the proposed job duties, a job that is generallyassociated with a specialty occupation may not necessarily be a specialty occupation with aparticular petitioner. The H-1B petition was filed for an accountant, and the AAO noted that abookkeeping job, which does not qualify as a specialty occupation, may require knowledge of accounting principles:

Matter of [name not provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 04D2101) (USCIS denial). See also Matter of [name not provided] WAC 04 228 53792 (AAOMar. 21, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D2, and then search by date and for 05D2101) (USCIS denial reversed by AAO)(It is noted that not all food service manager positions may be considered specialty occupations. Eachposition must be evaluated based on the nature and complexity of the actual duties.

[T]he performance of duties requiring accounting knowledge does not establish theproffered position as that of an accountant. The question is not whether thepetitioners position requires knowledge of accounting principles, which it does, butrather whether it is one that normally requires the level of accounting knowledge that

is signified by at least a bachelors degree, or its equivalent, in accounting. Matter of [name not provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (select

Laws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 04D2101).

Similarly, the AAO drew a distinction between an engineer and a construction manager:

[T]he decisive question is not whether the petitioners position requires knowledgeof engineering principles, but whether the position is one that normally requires thelevel of engineering knowledge that is acquired through the completion of abachelors degree, or its equivalent, in engineering. The AAOs review of the dutiesof the proffered position finds they do not establish that the engineering knowledgerequired of the beneficiary would be on a par with that possessed by an engineer.Page 477

The duties to be performed by the beneficiary do not reflect the breadth andcomplexity of engineering employment. Instead, this position, with responsibility for overseeing the stonework to be performed by the petitioner under its constructioncontracts, appears to combine the employment of a construction manager with thatof an engineering technician or drafter, jobs that require some knowledge of engineering but are not performed by engineers.

Matter of [name not provided] WAC 03 100 50458 (AAO Aug. 25, 2005), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D11, and then search bydate and for 36D11214). This decision is erroneously posted online in the category for TN status.

USCIS and/or the AAO may also request and consider samples of work produced by an employeewho formerly held the job. In one case, the AAO discussed this evidence in the context of thisfirst requirement, rather than when evaluating whether the employer normally requires adegree, as discussed below. This may be because work product can display the job duties.

Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101); Matter of [name not provided] EAC [redacted ] (AAO Feb. 23, 2006), published on

AILA InfoNet at Doc. No. 08041470 ( posted Apr. 14, 2008). Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (select

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(3). Petitioners Size and Industry

The petitioners size is a relevant inquiry because the complexity of the duties in relation to thepetitioners business must be analyzed. In the case involving the accountant/bookkeeper, the

AAO stated:

Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101) (internal citation omitted); Fred 26 Importers, Inc. v. USCIS , 445 F. Supp. 2d 1174(C.D. Cal. 2006) (The CSC Director noted that a human resources manager in a large company oftenqualifies as a specialty occupation because the nature of the managers duties in a larger companynecessitates a degree in human resources or a related field); Matter of [name not provided] LIN 04 18451951 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on theright toolbar under More Information, D8, and then search by date and for 05D8101). This decision iserroneously posted online in the category for O status.

While the size of a petitioners business is normally not a factor in determining thenature of a proffered position, both level of income and organizational structure areappropriately reviewed when a petitioner seeks to employ an H-IB worker as anaccountant. It is reasonable to assume that the size of an employers business hasan impact on the duties of a particular position. In matters where a petitionersbusiness is relatively small, the AAO reviews the record for evidence that itsoperations, are, nevertheless, of sufficient complexity to indicate that it would employthe beneficiary in an accounting position requiring a level of financial knowledge thatmay be obtained only through a baccalaureate degree in accounting or itsequivalent. Page 478

Matter of [name not provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 04D2101) (internal citation omitted). See also Matter of [name not provided] WAC 04 05450130 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on theright toolbar under More Information, D8, and then search by date and for 01D8101) (By failing to providea copy of its license to operate its medical services business and the tax information requested in the RFE[Request for Evidence], the petitioner prevented the director from accurately assessing whether thebeneficiary would be employed by the petitioner in an occupation requiring the services of a medical researchwith at least a bachelors degree, or its equivalent, in a specific specialty); Matter of [name not provided] WA03 262 52383 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions linkon the right toolbar under More Information, D8, and then search by date and for 06D8101). The twodecisions are erroneously posted online in the category for O status.

Similarly, USCIS, inter alia, asserted that as a one-person business, the beneficiary would beresponsible for administrative and clerical duties, which are not specialty occupations, althoughthis ground of denial was reversed by the AAO. In another case, the AAO noted that proposedduties that related exclusively to the operation of the retail store for which a location has not yetbeen obtained are not a basis for approval of the petition. In a sense, this analysis is similar tothe requirement that an L-1A nonimmigrant employed by a smaller company primarily engage inmanagerial or executive activities, as discussed in Chapter Eleven, L Visas and Status.

Matter of [name not provided] EAC [ redacted ] (AAO Feb. 23, 2006), published on AILA InfoNet at Doc. No.08041470 ( posted Apr. 14, 2008) (Despite the fact that the beneficiary may also be engaged in someadministrative tasks as a sole proprietor, most of the duties of the position include those of a graphicdesigner, which the [OOH] indicates could not be performed without the training and education that areincluded in a bachelors degree in graphic design).

Matter of [name not provided] WAC 04 043 51523 (AAO Feb. 3, 2006), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D8, and then search by

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date and for 03D8101). This decision is erroneously posted online in the category for O status.

To avoid denial on these grounds, the practitioner may wish to submit evidence of other individuals who will perform the administrative tasks, perhaps on a part-time basis and/or explainhow the other duties are deminimus and merely incidental to the professional responsibilities.Because of the closer scrutiny of smaller employers, discussed below, the practitioner isstrongly encouraged to include proof of the number of employees, such as federal tax returns,Forms W-2, or state unemployment tax records.

AILA/VSC Liaison Practice Pointer: Responding to Small Company RFEs, published on AILA InfoNet atDoc. No. 09102667 ( posted Oct. 26, 2009). Matter of [name not provided] EAC [ redacted ] (AAO Feb. 23, 2006), published on AILA InfoNet at Doc. No.

08041470 ( posted Apr. 14, 2008) (USCIS denial). Matter of [name not provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (select


A smaller employer may be able to demonstrate a need for the beneficiarys services in aspecialty occupation by explaining the businesss growth or expansion. Appropriate evidence of a pattern of growth in the petitioners revenues or business operations includes copies of taxreturns for the years preceding the filing of the H-1B petition, financial audits, sales projections,

debt repayment schedules, loan applications, correspondence, or a business plan related to theacquisition of additional businesses. For further discussion of plans for business growth or expansion, see Volume 2: Chapter Two, The Labor Certification Application. Alternatively, theinitial H-1B petition could Page 479 be for part-time employment, with an amended petition filedlater when the level of work justifies the upgrade.

Id . Id . AILA/VSC Liaison Practice Pointer: Responding to Small Company RFEs, published on AILA InfoNet at

Doc. No. 09102667 ( posted Oct. 26, 2009).

The petitioners industry may also be considered vis--vis the described job duties. For example,in upholding the revocation of an H-1B petition filed on behalf of an industrial engineer, the AAOnoted: The petitioner is not in the business of manufacturing or production; it is a constructionand remodeling company. The intimation seemed to be that a construction company wouldmore likely require the services of a construction manager rather than an industrial engineer.For further discussion of the petitioners business purpose, see below.

Id. Id .

b. A Degree Is Normally Required in the Industry by the Employer, and/or the Job Duties AreSpecialized and Complex

As a practical matter, the final three criteria listed abovemay be considered to be true alternatives tothe primary condition, based on how the regulations are worded, especially for occupations intransition, as noted above:

Matter of [name not provided] LIN 04 257 51922 (AAO Feb. 10, 2005), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 07D2101) (Also, the petitioner has not satisfied either of the alternative prongs of 8 C.F.R.214.2(h)(4)(iii)(A)(2)).

For a job to be considered within the professions, it is not enough that a petitioner desires to employ a person with a degree. The degree requirement must be an industrystandard in parallel positions among similar firms and institutions. In addition, it must beshown the employer normally imposes this requirement.

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An analysis of [eligibility] includes not only the actual requirements specified by thepetitioner but also those required by the specific industry in question, to determine, inpart, the validity of the petitioners requirements.

Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988). Matter of Michael Hertz Associates , 19 I&N Dec. 558 (Commr 1988).

Experience has shown that when an RFE issued, it typically requests evidence regarding all four types of criteria, and the practitioner is strongly encouraged to make alternative arguments for each

criterion when responding to the RFE. Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (select

Laws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101) (consideration of all four criteria by both USCIS and the AAO).

Evidence that a degree in the specialty is commonly required by other employers in the sameindustry, such as job announcements, industry letters, or Internet job postings, Page 480should include meaningful descriptions of the positions. Other evidence includes surveys,studies or other publications, or a statement from a university professor, but one letter doesnot constitute an industry standard. If the advertisements are not from entities in the sameindustry, then it may possible to demonstrate that the degree requirement is typical among similar organizations through parity in size, revenues, or number of employees, although the practitioner is strongly advised to submit postings from industry employers if possible. The AAO rejected jobannouncements as insufficient, however, where they corroborate[d] the information in the [OOH]that a broad range of degrees is acceptable for entry into the position.

Matter of [name not provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 04D2101); Matter of [name not provided] LIN 04 184 51951 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D8,and then search by date and for 05D8101). This decision is erroneously posted online in the category for Ostatus.

Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101).

Matter of [name not provided] WAC 03 100 50458 (AAO Aug. 25, 2005), available at www.uscis.gov (selecLaws, Administrative Decisions link on the r ight toolbar under More Information, D11, and then search bydate and for 36D11214). This decision is erroneously posted online in the category for TN status.

Matter of [name not provided] WAC 04 228 53792 (AAO Mar. 21, 2006), available at www.uscis.gov (selecLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 05D2101). Cf . Matter of [name not provided] LIN 04 257 51922 (AAO Feb. 10, 2005), availableat www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information,D2, and then search by date and for 07D2101) (The AAO does not assign expert weight to the professorsconclusion that the proffered position is a specialty occupation. The record does not establish the professor as an expert on the requirements for qualifying a position as a specialty occupation. There is no evidence thatthe professor has specialized knowledge of the relevant statutes, regulations, case law, and precedentdecisions, or that he has been recognized as an authority in this area).


Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101) (Neither do these listings indicate that the businesses publishing the advertisementsare similar to the petitioner in size, number of employees, or level of revenue); Matter of [name not provided] WAC 02 255 53547 (AAO Feb. 3, 2006), available at www.uscis.gov (select Laws, Administrative Decisionslink on the right toolbar under More Information, D8, and then search by date and for 07D8101). Thisdecision is erroneously posted online in the category for O status.

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Matter of [name not provided] LIN 04 184 51951 (AAO Feb. 3, 2006), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D8, and then search bydate and for 05D8101). This decision is erroneously posted online in the category for O status.

When reviewing an employers historical degree requirement, the critical element is not the title of the position or the employers self-imposed standards, but whether the position actually requires thetheoretical and practical application of a body of highly specialized knowledge and a degree.

Appropriate evidence may include documents discussing past recruiting and hiring practices withregard to the proffered position or Page 481 other similarly situated employees. The petitioner

may submit affidavits from previous employees, but all of the information should be corroborated,such as copies of degrees, descriptions of job duties, and employment records. As stated by the AAO:

Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101); Matter of [name not provided] WAC 07 151 50781 (AAO June 3, 2008), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D2,and then search by date and for 01D2101); Matter of [name not provided] LIN 04 184 51951 (AAO Feb. 3,2006), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D8, and then search by date and for 05D8101). This decision is erroneously postedonline in the category for O status.

Matter of [name not provided] WAC 07 151 50781 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 01D2101).


The AAO reviews the petitioners past employment practices as well as the histories,including names and dates of employment, of those employees with degrees whopreviously held the position, and copies of those employees diplomas to aid indetermining the third criterion. To interpret the regulations any other way would lead toabsurd results: if [US]CIS were limited to reviewing a petitioners self-imposed

employment requirements, then any alien with a bachelors degree could be broughtinto the United States to perform a menial, non-professional, or an otherwise non-specialty occupation, so long as the employer required all such employees to havebaccalaureate or higher degrees.

Matter of [name not provided] WAC 07 137 52988 (AAO June 3, 2008), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 02D2101); Matter of [name not provided] WAC 07 151 50781 (AAO June 3, 2008), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D2,and then search by date and for 01D2101); Matter of [name not provided] WAC 03 100 50458 (AAO Aug.25, 2005), available at www.uscis.gov (select Laws, Administrative Decisions link on the right toolbar under More Information, D11, and then search by date and for 36D11214). This decision is erroneously posted

online in the category for TN status.The practitioner should also confirm that the employer normally requires an individual with theappropriate degree. In one case, the BIA noted that the previous incumbent had qualified throughhis experience rather than through his Bachelors degree and that the position can be performedsuccessfully by an experienced person whose education and training are not equal to abaccalaureate degree in a specialized area. In another case, the AAO noted that the employersacceptance of a variety of liberal arts degrees, rather than requiring a human resources backgroundis further indication that it does not require a degree in a specific specialty and that the position,therefore, is not a specialty occupation. Also, if the petitioner will place the beneficiary at a third-party worksite, then USCIS may require evidence that the entities ultimately employing the proposedbeneficiaries require a bachelors degree for all employees in that position because the degree

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requirement should not originate with the employment agency that brought the beneficiaries to theUnited States for employment with the agencys clients. Page 482

Matter of Caron International, Inc. , 19 I&N Dec. 791 (Commr 1988). Matter of [name not provided] LIN 04 184 51951 (AAO Feb. 3, 2006), available at www.uscis.gov (select

Laws, Administrative Decisions link on the r ight toolbar under More Information, D8, and then search bydate and for 05D8101). This decision is erroneously posted online in the category for O status.

Matter of [name not provided] WAC 03 232 53697 (AAO Feb. 3, 2006), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D8, and then search by

date and for 03D8101) (internal citation omitted). This decision is erroneously posted online in the categoryfor O status.

Based on an analysis of the specialized and complex job duties, the AAO reversed USCISs denial inone case filed by a highly-regarded and world renowned restaurant operation. Noting that thebeneficiary would also be a member of the petitioners management team, all members of which holdBachelors degrees or the equivalent, the AAO stated:

Matter of [name not provided] EAC 03 143 51185 (AAO Jan. 28, 2005), available at www.uscis.gov (selectLaws, Administrative Decisions link on the r ight toolbar under More Information, D2, and then search bydate and for 14D2101).

The [OOH] provides valuable information about a wide range of occupations in thenations economy. That information however, is not all inclusive. It provides a generalcomposite description of jobs and cannot reasonably be expected to reflect all worksituations in specific establishments or localities. It is therefore, necessary, to consider the nature of the petitioners operations and the specific duties of the proffered positionwhen determining whether the job is a specialty occupation. Here, the petitioner is alarge specialty restaurant with a complex operational and delivery structure. The dutiesof the proffered position are more complex than those described in the Handbook for atypical chefs position. Thus, the petitioners requirement of a bachelors degree is areasonable requirement. The petitioner has established that the nature of the specificduties is so specialized and complex that knowledge required to perform the duties isusually associated with the attainment of a baccalaureate or higher degree.

Id .

In another case, a district court reversed denial, stating that the AAO provided no basis for itsdecision but merely reiterated the criterion and then stated that the position does not meet therequirement and neglected to discuss statements provided by university professors. A petitioner may be able to demonstrate that the job requires an individual with a Bachelors degree because itrepresent[s] a combination of jobs that would require the beneficiary to have a unique set of skillsbeyond those of an individual without a degree. For further discussion of a combination of jobs,see Volume 2: Chapter Two, The Labor Certification Application.

Fred 26 Importers, Inc. v. USCIS , 445 F. Supp. 2d 1174 (C.D. Cal. 2006). Matter of [name not provided] EAC 06 136 50756 (AAO Nov. 13, 2007), available at www.uscis.gov (select


B. Qualifying for the Specialty Occupation

The practitioner should note that the mere fact that the H-1B job qualifies as a specialty occupation isinsufficient to obtain H-1B status on behalf of the beneficiary:

The facts of a beneficiarys background only come at issue after it is found that the position inwhich the petitioner intends to employ him falls within the professions. After that determinationis made, attention turns to the qualifications of the beneficiary to determine if he meets thestandards and requirements of the position. Page 483

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Therefore, the H-1B petition must also present [e]vidence that the alien qualifies to perform services in thespecialty occupation. The statutes state that an individual may qualify for H-1B status by possessingone of the following:

8 CFR 214.2(h)(4)(iii)(B)(3) .

[F]ull state licensure to practice in the occupation, if such licensure is required to practice in theoccupation, as discussed below;

[C]ompletion of the baccalaureate or higher degree in the specialty that is required for theoccupation; or

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[E]xperience in the specialty equivalent to the completion of such degree; and

[R]ecognition of expertise in the specialty through progressively responsible positions relatingto the specialty.

INA 214(i)(2) ; Immigration Act of 1990, Pub. L. No. 101-649, 205(c), 104 Stat. 4978 (Nov. 29, 1990).

The regulations expand upon the statutes by stating that the beneficiary must possess one of the followingqualifications:

U.S. bachelors degree or higher degree required by the specialty occupation from an accreditedcollege or university;

[F]oreign degree determined to be equivalent to a United States baccalaureate or higher degreerequired by the specialty occupation from an accredited college or university;

[A]n unrestricted state license, registration or certification which authorizes him or her to fullypractice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

Cumulative education, specialized training, and/or progressively responsible experience that isequivalent to completion of a United States baccalaureate or higher degree in the specialtyoccupation, and have recognition of expertise in the specialty through progressively responsiblepositions directly related to the specialty.

8 CFR 214.2(h)(4)(iii)(C).

The filed H-1B petition must include [d]ocumentation, certifications, affidavits, declarations, degrees,diplomas, writings, reviews, or any other required evidence sufficient to establish that the bene

H-1B Business Immigration

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