Non-Precedent Decision of the Administrative Appeals ... · and weaknesses of the case, and compile a summary of relevant facts and issues. • Review, summarize, and analyze medical

(b)(6)

MATTER OF L-0-0-D-J-W-

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 23,2016

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a law office, seeks to temporarily employ the Beneficiary as a law clerk under the H-1B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and practical application of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as ~ minimum prerequisite for entry into the position.

The Director, California Service Center, denied the petition. The Director concluded that the Petitioner had not established the proffered position is a specialty occupation.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying the petition.

I. COLLATERAL ESTOPPEL AND RES JUDICATA

Preliminarily, we will address the Petitioner's collateral estoppel and res judicata claims made on appeal. The Petitioner asserts that it timely filed a combined motion to reopen and reconsider the Director's initial August 12, 2015, decision in this matter and that on February 25, 2016, its attorney was informed that an "approval notice" had been issued. In fact, the Form I-290B, Notice of Appeal or Motion bears the notation "Approved" on "Jan 19, 20 16"; however, the term "Approved" in this context refers to the Director's decision to reopen and reconsider her August 12, 2015, decision denying the instant Form I-129, Petition for a Nonimmigrant Worker. Although the Director's terminology may have been misleading when referring to the Form I-290B as having been "Approved," it is clear from the Director's motion decision dated April 4, 2016, that a decision to reopen and reconsider was made, and upon reopening and reconsideration, the underlying petition was ultimately denied.

The Petitioner states that the U.S. Citizenship and Immigration Services (USCIS) website indicated on or about April 4, 2016, that the petition was denied. According to the Petitioner, it did not receive the denial decision, and on April 22, 2016, it submitted a status request for that notice of denial. On or about May 19, 2016, the Petitioner says it received the notice of denial. That decision, as noted above,

Matter of L-0-0-D-J-W-

states that the motion to reopen and reconsider was "approved" and the new evidence considered. The Director provided a second full decision on the merits and ultimately again denied the petition. The Petitioner avers that the second denial was essentially the same as the first denial even though the Director acknowledged additional evidence had been submitted in support of the combined motion.

The Petitioner asserts that the doctrine of collateral estoppel and res judicata apply as a final judgment ("approval" of the Form I-290B) was rendered by the Director as demonstrated by the verbal notification to the Petitioner's counsel on February 25, 2016, and USCIS public records which indicated that the Form I-290B was "approved." While the term "approved" was used to refer to USCIS' decision to reopen and reconsider the matter, no decision to approve the underlying petition was ever made or issued.

We also find that even though the decision on motion was issued on April 4, 2016, the Petitioner's instant appeal was accepted more than sixty days later because of the confusing information provided to the Petitioner. We reiterate that a decision to approve the petition was never issued; therefore, collateral estoppel and res judicata do not apply. In any event, the Petitioner in this case has been afforded a third opportunity with this appeal process to present its arguments and evidence in support of its contention that the proffered position is a specialty occupation.

Accordingly, we will continue with our de novo review of this matter.

II. LAW

Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an occupation that requires:

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position must meet one of the following criteria to qualify as a specialty occupation:

(1) 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;

2


(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.

8 C.F.R. § 214.2(h)(4)(iii)(A). USCIS has consistently interpreted 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 proposed position. See Royal Siam Corp. v. Cherto,[f, 484 F .3d 13 9, 14 7 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

III. PROFFERED POSITION

In the H-1B petition, the Petitioner stated that the Beneficiary will serve as its "law clerk." The Petitioner initially listed the following duties to be performed by the individual in the proffered position as follows: '

• Work closely with attorneys regarding large, document intensive complex litigation matters in busy medical malpractice defense and employment litigation practice.

• Perform legal research, conduct legal analysis and prepare legal documents. • Responsible for heavy document production and review, particularly of a medical

nature. • Handle discoveries, including Request for Production, Interrogatories and Request

for Admissions. • Draft pleadings and analyze legal documents for accuracy. • Correspond with clients, carriers, Department of Children and Family Services and

public and government facilities.

The Petitioner indicated that a "Bachelor's degree, legal education and knowledge of medical terminology [is] required" to perform the duties of its law clerk position. In response to the Director's request for evidence (RFE), the Petitioner provided the following statement of duties for the proffered position (paraphrased for brevity):

1) Legal Research • Legal research into complex matters of tort, professional negligence,

employment, contract, business, and procedural law using databases such as Westlaw and LexisNexis.

• Identify legal issues with regard to pleadings, procedural defects, and dispositive motions, involving intensive research on a wide array of case law

3


and its application, interpretation of recent rulings, as well as summaries and legal analysis.

2) Litigation Preparation and Assistance • Document review: review and prepare evidence for trial, identify relevant

evidence or evidentiary issues and present them to the attorney. • Trial assistance: During trial, assist attorneys with research into relevant case

law or legislation. Carry out extensive review of cases prior to trial and assist attorney with arguments as the case is ongoing.

• Engage regularly with retained experts in their varying expertise in the United States and the United Kingdom to develop legal strategies and arguments to be raised at trial.

• Analyze evidence, identify legal issues, and assist in making arguments based on knowledge of the facts of the case and the applicable law.

3) Interpretation of Foreign Laws • , Carry out research and analyze foreign statutes and case law, and examine the

applicability of such law including jurisdictional issues, for cases arising outside the United States, such as in the United Kingdom, Scotland, and Ireland.

• Research with respect to National Health Services in the United Kingdom.

4) Drafting and Interpretation of Contracts and Settlement Agreements: • Analyze in detail contracts in business, healthcare, and employment cases.

Involvement in drafting settlement language to be included in settlement agreements and releases used to resolve cases.

5) Prepare Pleadings and Motions • Draft pleadings and dispositive motions based on applicable case law and

procedural requirements.

6) Preparation of Cases • Carry out initial review and preparation of a case when received by the firm.

Identify flaws in the plaintiffs complaint, identify defenses, identify strengths and weaknesses of the case, and compile a summary of relevant facts and issues.

• Review, summarize, and analyze medical records, employment and personnel files, and investigative materials.

7) Meeting with Clients • Interact with clients on a regular basis, obtain case information, and update

clients on the status of their case. • Identify key issues, discuss in' detail rulings, motions, and pleadings.

4


To perform these duties, the Petitioner stated that "it is essential that the candidate have a law degree for the role," that the candidate is "trained in legal issue spotting, analyzing authority of case law (binding, persuasive or of no authority), applying the law, and legal writing skills," and that "based on the broad range of issues handled by the firm, the complexity of the cases, and high profile of the clients it is essential that such [client] interaction is carried out ,by someone with a law degree."

IV. ANALYSIS

Upon review of the record in its totality and for the reasons set out below, we determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.'

A. Labor Condition Application

We first turn to the labor condition application (LCA) submitted in support of the H-lB petition, in which the Petitioner designated the proffered position under the occupational category "Paralegals and Legal Assistants" corresponding to the Standard Occupational Classification code 23-2011 at a Level I wage. In response to the Director's RFE, the Petitioner stated that the duties of the law clerk

, are "essentially those of an attorney" and "on par with those of attorneys." The Petitioner further stated that the Beneficiary would not perform "standard paralegal" duties.

The U.S. Department of Labor (DOL) guidance states that wage levels should be determined only after selecting the most relevant occupational code classification. Then, a prevailing wage determination is made by selecting one of four wage levels for an occupation based on a comparison of the employer's job requirements to the occupational requirements, including tasks, knowledge, skills, and specific vocational preparation (education, training and experience) generally required for acceptable performance in that occupation. Factors to be considered when determining the wage level for a position include the complexity of the job duties, as well as the levels of judgment, supervision, and understanding required to perform the job duties.

DOL guidance states that a Level I (entry) wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive specific instructions on required tasks and

1 The Petitioner submitted documentation to support the· H-1 B petition, including evidence regarding the proffered position and its business operations. While we may not discuss every document submitted, we have reviewed and considered each one.

5


expected results. 2 A Level I wage should be considered for research fellows, workers in 'training, or internships.

According to DOL guidance, an indication that the job request warrants a wage determination at a Level I would be a requirement for years of education and/or experience that are generally required as described in the Occupational Information Network (O*NET) Job Zones. The occupational category "Paralegals and Legal Assistants," has been assigned an O*NET Job Zone 3, which groups it among occupations for which medium preparation is needed. More specifically, most occupations in this zone "require training in vocational schools, related on-the-job experience, or an associate's degree." See O*NET OnLine Help Center, at http://www.onetonline.org/help/online/zones, for a discussion of Job Zone 3.

Therefore, the Petitioner's designation of the proffered position at a Level I on the LCA suggests that the Petitioner's academic and/or professional experience requirements for the proffered position would be less than "training in a vocational school, related on-the-job experience, or an associate's

'-degree."

The Petitioner's assertion that the proffered position requires a significant level of responsibility and expertise does not appear to be reflected in the wage level chosen by it on the LCA. 3 The statements regarding the claimed level of complexity, independent judgment and understanding required for the proffered position, as well as the requirements, appear to be materially inconsistent with the certification ofthe LCA for a Level I position.4 This conflict challenges the overall credibility of the petition in establishing the nature of the proffered position and in what capacity the Beneficiary will be employed. Therefore, we are precluded from finding that the proffered position is a specialty occupation. Nevertheless, we will perform a complete specialty occupation analysis under each of the four, alternative criteria at 8 C.F .R. § 214.2(h)( 4 )(iii)(A). 5

B. First Criterion

We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position. To inform this inquiry, we recognize the DOL's Occupational Outlook

2 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://flcdatacenter.com/download/ NPWHC _Guidance _Revised _II_ 2009.pdf. 3 A petitioner must distinguish its proffered position rrom others within the occupation through the proper wage level designation to indicate factors such ras complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties. Through the wage level, the Petitioner reflects the job requirements, experience, education, special skills/other requirements and supervisory duties. 4 It must be noted .that a language requirement other than English in a job offer generally is considered a special skill for all occupations (with the exception of Foreign Language Teachers and Instructors, Interpreters, and Caption Writers). In the instant case, the Petitioner has not established that its foreign language requirement is reflected in the wage level for the proffered position. 5 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually.

6


Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.6

On the LCA submitted in support of the H-lB petition, the Petitioner designated the proffered position under the occupational category "Paralegals and Legal Assistants" corresponding to the Standard Occupational Classification (SOC) code 23-2011.7 The subchapter of the Handbook entitled "How to Become a Paralegal or Legal Assistant" states, in relevant part, the following:

Most paralegals and legal assistants have an associate's degree in paralegal studies, or a bachelor's degree in another field and a certificate in paralegal studies.

Education

There are several paths a person can take to become a paralegal. Candidates can enroll in a community college paralegal program to earn an associate's degree. However, many employers prefer, or even require, applicants to have a bachelor's degree.

Because only a small number of schools offer bachelor's and master's degrees in paralegal studies, applicants typically have a bachelor's degree in another subject and earn a certificate in paralegal studies.

Associate's and bachelor's degree programs in paralegal studies usually offer paralegal training courses in legal research, legal writing, and the legal applications of computers, along with courses in other academic subjects, such as corporate law and international law. Most certificate programs provide intensive paralegal training for people who already hold college degrees.

6 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 7 As discussed above, the Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by the DOL provides a description of the wage levels. A LeveL I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill requirements of the Petitioner's job opportunity. !d.


Employers sometimes hire college graduates with no legal (1Xperience or legal education and train them on the job. In these cases, the new employee may have experience in a technical field that is useful to law firms, such tax preparation, nursing, occriminal justice.

U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Paralegals and Legal Assistants," http://www.bls.gov/ooh/legal/paralegals-and-legalassistants.htm#tab-4 (last visited Nov. 2, 2016).

The Petitioner in this matter "reluctantly concurs that, in the absence of a more specifically relevant classification, the position of Law Clerk, proffered to the Beneficiary is most similar to the U.S. Bureau of Labor Statistics' Standard Occupation Classification of Paralegals and Legal Assistants." As set out above, the Handbook reports a variety of paths available to qualify to perform the duties of this occupation, including an associate's degree in paralegal studies, or a bachelor's degree in another field and a certificate in paralegal studies. Thus, the Handbook does not include sufficient information to conclude that simply by virtue of its occupational classification the paralegal and legal assistant occupation qualifies as a specialty occupation. On the contrary, the minimum entry requirements to perform the duties of this occupation, according to the Handbook, vary from an associate's degree in paralegal studies, to an unspecified college degree with no legal experience or legal education, to a bachelor's degree in a field other than paralegal studies and a certificate, with undefined parameters, in paralegal studies. The Handbook does not support the proposition that a paralegal or legal assistant, by virtue of its occupational classification is a specialty occupation.

When the Handbook does not provide support that a proffered position is one that meets the statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to provide persuasive evidence that the proffered position more likely than not satisfies this or one of the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, authoritative sources) that supports a finding that the particular position in question qualifies as a specialty occupation.8 Whenever more than one authoritative source exists, an adjudicator will consider and weigh all of the evidence presented to determine whether the particular position qualifies as a specialty occupation. Here, the Petitioner has not provided evidence from other authoritative sources in

8 The Petitioner asserts that the Handbook provides only general guidance regarding the occupations it addresses and references the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs revised November 2009 as an alternate authority on the academic requirements for a law clerk. We note, however, that this document was issued prior to the division of the law clerk occupation, SOC 23-2092, into two separate occupations -judicial law clerks, SOC 23-1012, and paralegals and legal assistants, SOC code 23-20 II. According to the Handbook's discussion of a judicial law clerk occupation, such an occupation requires a doctoral or professional degree. See http://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm#Legal occupations (last visited Nov. 2, 2016). Here, however, the Petitioner has designated the proffered position as a paralegal or legal assistant on the LCA, and concurs that the proffered position most closely corresponds to a paralegal or legal assistant position. Thus, neither the academic requirements for a judicial law clerk nor the outdated 2009 policy guidance is relevant to the matter at hand.

8

(b)(6)


support of a finding that the occupation of a paralegal or legal assistant requires a bachelor's degree in a specific specialty, or its equivalent, as the normal minimum requirement for entry into the occupation.9

The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

C. Second Criterion

The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong focuses upon the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

1. First Prong

(

To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

In determining whether there is such a common degree requirement, factors often considered by USCIS include: whether the Handbook reports that the industry requires a degree; whether the industry's professional association has made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms "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. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)).

Here and as already discussed, the Petitioner has not established that the proffered position is one for which the Handbook (or other independent, authoritative sources) reports an industry-wide requirement of at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the matter.

We have reviewed the printout from the on "Paralegal Education - Entering the Profession" submitted by the Petitioner. In this printout, the recognized that a two-year degree with an emphasis in paralegal studies is acceptable to employers in some markets as a minimum criterion to enter the paralegal profession. The also referenced

9 The Petitioner's specific position, including the duties and the nature of the Petitioner's business will be considered when discussing subsequent criterion. In the first criterion we focus on the occupation itself and determine first if the Petitioner has provided duties that fall within the general parameters of that occupation and whether authoritative sources, based on surveys and other objective research, have determined that the occupation itself requires a bachelor's degree in a specific specialty, or its equivalent, as the normal minimum requirement for entry into the occupation. Here, the record does not establish that the occupation of a paralegal or legal assistant, as a category, qualifies for specialty occupation treatment.

9

(b)(6)


current trends, based on various unspecified surveys, which indicate that formal paralegal education is becoming a requirement to secure paralegal employment and that a four-year degree is the hiring standard in many markets. The thus, recommended that "future practitioners should have a four-year degree to enter the profession, and individuals receiving a formal paralegal education should have 24 semester hours or the equivalent of legal specialty courses to enhance their ability to practice as paralegals." The however, does not indicate that the four-year degree must be in a specific specialty and indicates that those individuals receiving a formal paralegal education, 24 semester hours (the equivalent of two 12-hour credit semesters or one year of study) is sufficient "to enhance their ability to practice as paralegals." Accordingly, the paralegal professional association does not identify a specific bachelor's degree in a particular discipline, or its equivalent, as the minimum entry requirement for the occupation. Rather, the confirms the Handbook's report that there are different paths to enter into the paralegal or legal assistant occupation, and that while it recommends one year of paralegal study to enhance eligibility, it does not state that this is an established common standard necessary to practice the occupation.

We have also reviewed the four letters from other attorneys indicating their employment requirements for their paralegal positions. 10 noted his practice focused on business litigation and complex bankruptcy litigation and that in the past ten years to the best of his recollection he had hired five paralegals and all of them had a bachelor's degree in political science, English, pre-law, or a related subject. indicated his firm handles complex business litigation, intellectual property litigation, and other civil litigation, and that it employs two paralegals both of whom have bachelor's degrees. noted that his firm requires the paralegals to possess bachelor's degrees because they are required to exercise independent judgment, albeit under the oversight of an attorney. The third letter authored by the managing shareholder of the did not identify the nature of his firm but stated that his firm hired paralegals and legal specialists with a minimum of a bachelor's degree or equivalent in law or a related subject. He provided a list of five individuals he claimed were employed as paralegals who had bachelor' s degrees in political science, criminal justice, and media management and indicated four of the five were studying in juris doctorate programs. The Petitioner's own counsel also "affirms the Petitioner's hiring of a law clerk with at least a bachelor's degree." Thus, each of the letter-writers states that a general bachelor's degree is required for the paralegals employed in their organization. They do not confirm or agree, however, that the bachelor' s degree must be in a specific specialty. Moreover, the letters here do not include sufficient information to establish that the firms are similar to the Petitioner, that the employees hired perform duties that are parallel to the duties of the proffered position, and that the degrees required are degrees in a specific specialty related to the duties of the position.

In support of its assertion that the degree requirement is common to the Petitioner's industry in parallel positions among similar organizations, the Petitioner also submitted copies of a number of advertisements for paralegals. Three of the submitted advertisements require a bachelor's degree and an

10 Three of the four lett~rs submitted are dated August 4 or 5, 2014, and indicate they are submitted on behalf of The Petitioner does not identify its relationship to if any. It is not possible to

conclude that these attorneys or their firms are similar to the Petitioner.

10


ABA paralegal certificate and three to five years of paralegal experience; two of the advertisements require a bachelor's degree and prefer a paralegal certificate and paralegal experience; while the majority of the advertisements require either a bachelor's degree or a paralegal certificate and differing levels of paralegal experience. First, we reiterate that these advertisements again confirm the Handbook's report that there are a variety of ways to become qualified to perform the duties in a paralegal occupation and that a bachelor's degree in a specific specialty, or its equiv~lent, is not required. We also find several of the advertised positions are for paralegal positions that are for more senior positions than the position offered here. That is, the Petitioner in this matter designated the proffered position as a wage Level I on the LCA, a wage level that does not require experience. Upon review ofthe advertisements, it is not possible to conclude that the advertised positions are parallel in level of responsibility, or in duties, to the proffered position.

Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common in parallel positions with organizations that are in the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner has not, therefore, satisfied the criterion of the first ~ltemative p;ong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

2. Second Prong

We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty, or its equivalent.

The Petitioner submits information on its clientele and avers that the complexity of the litigation field of law, specifically the medical malpractice cases it handles, must be considered when reviewing the proffered position. The Petitioner asserts that the duties of the proffered position are more complex in the context of its business environment and its type of cases. The Petitioner, thus, takes issue with the Director's finding that the evidence does not distinguish between the duties to be performed for the Petitioner and those normally performed by paralegals and legal assistants.

We have reviewed the descriptions of duties provided by the Petitioner as well as the nature of its business. We have also considered that the Petitioner has designated the proffered position as a paralegal requiring only a Level I wage as shown on the certified LCA. A Level I wage requires only a basic understanding of the occupation. 11 Thus, a designation for a Level I wage within the paralegal and legal assistant occupation is for a position that is not likely distinguishable by relatively

11 From a Level I wage designation it must be concluded that either: (1) the proffered position is a low-level, entry position relative to other paralegal and legal assistant positions and, thus, based on the findings of the Handbook, published by the Bureau of Labor Statistics, the proffered position is not a specialty occupation; or (2) the LCA does not correspond to the petition. In this matter, even if it were determined that the proffered position requires at least a bachelor's degree in a specific specialty, or its equivalent, such that it would quality as a specialty occupation, the petition could still not be approved because the Petitioner has not submitted an LCA that corresponds to a higher-wage level position.

II


specialized, unique, or complex duties. That is, while the Petitioner asserts that the duties of its paralegal are unique and complex and similar to the duties of an attorney, it also designates the wage level for the proffered position as an entry-level paralegal. Given the Handbook's report, as well as the other evidence submitted, that paralegal and legal assistant positions do not normally require at least a bachelor's degree in a specific specialty, or the equivalent, it is not credible that a paralegal or a legal assistant position involving limited, if any, exercise of independent judgment, close supervision and monitoring, receipt of specific instructions on required tasks and expected results, and close review (as designated by the Level I wage level) would contain such a requirement.

Moreover, the Petitioner does not provide probative information relevant to a detailed course of study leading to a specialty degree and the Petitioner has not established how such a curriculum is necessary to perform the duties it claims are so complex. The Petitioner does not otTer any analysis of what specific courses in an established bachelor's degree program are required to prepare the successful candidate to perform the duties of the proffered position. Rather, the Petitioner appears to rely on this specific Beneficiary's qualifications to support its claim that the proffered position is complex. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner here did not sufficiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F .R. § 214.2(h)( 4)(iii)(A)(2).

D. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it nonnally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. Here, the Petitioner submitted a letter identifYing three employees who hold, or have held, its position of law clerk. The Petitioner indicated that these three individuals possess bachelor's degrees in political science, history, and business administration/law. 12 The Petitioner does not indicate why or how these bachelor's degrees relate, if at all, to the duties it ascribes to the proffered position. Additionally, the record does not include evidence of the actual duties any of these individuals performed as the Petitioner's law clerk. Accordingly, we are unable to ascertain whether their duties are parallel to the duties of the proffered position.

Further, the Petitioner initially claimed that the individual in the proffered pos1t10n reqmres a "Bachelor's degree, legal education and knowledge of medical terminology." Subsequently, the Petitioner claimed that to perform the duties of the proffered position "it is essential that the candidate have a law degree," that the candidate is "trained in legal issue spotting, analyzing authority of case law (binding, persuasive or of no authority), applying the law, and legal writing skills," and that "based on the broad range of issues handled by the firm, the complexity of the cases, and high profile of the clients

12 The Petitioner noted that the individual with the history major performed more clerical duties in the law clerk position but that once she graduates from law school she will be charged with similar duties of the proffered position.

12


it is essential that such [client] interaction is carried out by someone with a law degree." The Petitioner however does not further develop the type of legal education required and whether this involves obtaining a paralegal certificate, attending a few undergraduate courses relating to the legal system, or a law degree equivalent to a juris doctorate degree. Moreover, the Petitioner does not relate these broadly stated requirements to its requirements, if any, for its prior law clerk positions. 13

We also point out that while a petitioner may assert that a proffered position requires a degree in a specific specialty, that statement alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the employer artificially created a token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 201 F. 3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty degree, or its equivalent, to perform its duties, the occupation would not meet the statutory or regulatory definition of. a specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). Here, the Petitioner has not established the referenced criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) based on its normal hiring practices.

E. Fourth Criterion

The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. Here, the Petitioner asserts that the proffered position requires that the incumbent independently discover and solve problems relating to policy and law, conduct legal analysis and interpret law and regulation, research case law, construct arguments, and assess facts gleaned from clients and that these duties require skills, knowledge, legal comprehension and analytics gained through a law degree.

We again refer to our earlier comments and findings with regard to the implication of the Petitioner's designation of the proffered position in the LCA as a Level I (the lowest of four assignable levels) wage, and hence one not likely distinguishable by relatively specialized and complex duties. 14 As

13 The Petitioner here seems to accept a ~ariety of degrees as acceptable to perfonn the duties of its law clerk. However, there must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a degree, without further specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, also does not establish eligibility."). 14 The Petitioner's designation-of this position as a Level I, entry-level position undennines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or

13

(b)(6)


discussed above, we find that the Petitioner's indication that the incumbent will work independently is inconsistent with its assignment of a Level I wage to the position. 15 We have also reviewed the Petitioner's description of duties for the proffered position, including the Petitioner's expanded version offered in response to the Director's RFE. While we understand that the Petitioner expects the Beneficiary to have a legal background to perform these duties, the Petitioner has not sufficiently explained how these duties require the theoretical and practical application of a body of highly specialized knowledge, and the 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 Petitioner has not distinguished the duties of the proffered position as more specialized and complex than the duties of a paralegal or legal assistant position that does not require a bachelor's degree in a specific specialty.

Upon re~iew of the totality of the record, the record does not include consistent probative evidence that the duties require more than a paralegal certificate or a general bachelor' s degree. The Petitioner has not demonstrated for the record that its Level I wage paralegal is a position with duties sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).

Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not demonstrated that the. proffered position qualifies as a specialty occupation.

V. BENEFICIARY'S QUALIFICATIONS

Since the identified basis for denial is dispositive of the Petitioner' s appeal, we need not address another ground of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly note and summarize it here with the hope and intention that, if the Petitioner seeks again to employ the Beneficiary or another individual as an H-lB employee in the proffered position, it will submit sufficient independent objective evidence to address and overcome this additional ground in any future filing.

As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the proffered position to determine whether it will require a baccalaureate or higher degree in a specific specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a specific specialty or its equivalent is required to perform the duties of the proffered position, it also

its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 15 We note here that an entry-level paralegal position required only a $40,602 annual wage in the area at the time the LCA was certified. However, a Level Ill (experienced) paralegal required a significantly higher annual wage of $64,834, and a Level TV (fully competent) paralegal required an .annual wage of $76,939. See FLC Online Wage Library at http://www.flcdatacenter.com/OesQuickResults.aspx?code=23-20 11 &area= &year= 15&source= I (last visited Nov. 2, 2016). For informative purposes, we note that a Level I wage for a lawyer in the area required an annual salary of $84,822. See FLC Online Wage Library at http://www. flcdatacenter.com/OesQuickResults.aspx?code=23-l 0 II &area= &year= 15&source= I (last visited Nov. 2, 2016).

14


cannot be determined whether the Beneficiary possesses that degree or its equivalent. Therefore, we need not and will not address the Beneficiary's qualifications further, except to note that, in any event, the Petitioner did not submit an evaluation of the Beneficiary's foreign degree or sufficient evidence to establish that her degree is equivalent to a U.S. bachelor's degree in a specific specialty. As such, since evidence was not presented that the Beneficiary has at least a U.S. bachelor's degree in a specific specialty, or its equivalent, the petition could not be approved even if eligibility for the benefit sought had been otherwise established. 16

VI. CONCLUSION

The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofL-0-0-D-J-W-, ID# 56499 (AAO Nov. 23, 2016)

j

16 The record includes a copy of the Beneficiary's resume, her foreign degree and transcript, and a transcript for one year of study in the United States in a non-degree seeking undergraduate program.

15

(

Documents

Non-Precedent Decision of the Administrative Appeals ... · and weaknesses of the case, and compile a summary of relevant facts and issues. • Review, summarize, and analyze medical