(AAO JAN062015_02D5101) H-3 Trainee Appeal Dismissed-Training Program Had Issues

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U.S. Department of Homeland Security

U.S. Citizenship and Immigration Service> Administrative Appeals Office (AAO)

20 Massachusetts Ave., N.W., MS 2090

Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

DATE: JAN 0 6 2015 OFFICE: VERMONT SERVICE CENTER FILE:

IN RE: Petitioner:

Beneficiary:

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 1 01(a)(15)(H)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(iii)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,

z£ /!tt«aJr� tf2.../

Ron Rosenb:rg {! Chief, Administrative Appeals Office

www. uscis.gov

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NON-PRECEDENT DECISION

DISCUSSION: The service center director (the director) denied the nonimmigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The grounds for denial will be partially withdrawn. The appeal will be dismissed. The petition will be denied.

I. BACKGROUND I

On the Form I-1 29 visa petition, the petitioner describes itself as a personal training and health education center. In order to employ the beneficiary in what it designates as a "Trainee for Health Training Specialist" position for a period of 16 months, the petitioner seeks to classify him as a nonimmigrant trainee pursuant to section 101(a)(15)(H)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(iii).

The director denied the petition based upon her evaluation of the evidence of record under the regulations governing the H-3 program. The director specified numerous, independent grounds for her determination to deny the petition.

The record of proceeding contains the following: (1) the Form I-1 29 and supporting documentation; ( 2) the director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's decision denying the petition; (5) the Form I- 290B (Notice of Appeal), a brief, and supporting documentation; (6) a letter from the AAO requesting verification of the intent to continue with the appeal; and (7) the petitioner's response to our request for verification of its intent.

In the Form I-1 29, the petitioner originally requested two trainees for the program. However, after filing this appeal, the petitioner filed an H-1B petition for one of the beneficiaries, The H-1B petition was approved on April 15, 2014, with employment start date October 1, 2014. Further, on February 26, 2014, a request to reinstate the student visa status for Mr. was approved. Consequently, our office sent a request to the petitioner to verify its intent to pursue the appeal. In response, the petitioner withdrew the appeal for but requested to pursue the appeal for Mr. Thus, this appeal deals with only one beneficiary.

Upon review of the entire record of proceeding, we find that the petitioner has overcome two of the director's grounds for denying this petition- and these we will withdraw. However, the evidence of record supports the other grounds for dismissal specified in the director's decision. Accordingly, the appeal will be dismissed, and the petition will be denied.

Beyond the decision of the director, we note an additional aspect of the record of proceeding, which, although not addressed by the director, also precludes approval of the petition, namely, the general level of the descriptions of the proposed training program, and the lack of specific training details that characterize the training program as presented in the record. We shall address this factor later in the decision.

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II. THE LAW

Section 101(a)(15)(H)(iii) of the Act, 8 U.S.C. § 1101(a)(15)(H)(iii), provides classification for "an alien having a residence in a foreign country, which [he or she] has no intention of abandoning, who is coming temporarily to the United States as a trainee, other than to receive graduate medical education or training, in a training program that is not designed primarily to provide productive employment."

The regulation at 8 C.F.R. § 214.2(h)(l)(ii)(E) states, in pertinent part:

An H-3 classification applies to an alien who is coming temporarily to the United States:

(1) As a trainee, other than to receive graduate medical education or training, or training provided primarily at or by an academic or vocational institution .. . .

The regulations directly addressing the H-3 alien-trainee program appear at 8 C.F.R. § 214. 2(h)(7). The definitional provision, at 8 C.F.R. § 214.2(h)(7)(i), states:

Alien trainee. The H-3 trainee is a nonimmigrant who seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment. This category shall not apply to physicians, who are statutorily ineligible to use H-3 classification in order to receive any type of graduate medical education or training.

The pa�ticular rules governing petitions for H-3 trainees are found m two parts of 8 C.F.R. § 214. 2(h)(7). They are:

>- 8 C.F.R. § 214. 2(h)(7)(ii), Evidence required for petition involving alien trainee," which has two provisions: (A) Conditions; and (B) Description of training program.

>- 8 C.F.R. § 214. 2(h)(7)(iii), Restrictions on training programs for alien trainee.

8 C.F.R. § 214. 2(h)(7)(ii)(A): Conditions for petition approval

Subparagraph (A) of the section on required evidence at 8 C.F.R. § 214.2(h)(7)(ii), specifies four conditions for approval of an H-3 Trainee petition:

Conditions. The petitioner is required to demonstrate that:

(1) The proposed training is not available in the alien's own country;

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(2) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed;

(3) The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and

(4) The training will benefit the beneficiary in pursuing a career outside the United States.

8 C.F.R. § 214. 2(h)(7)(ii)(B): Description of training program

Subparagraph (B) at 8 C.F.R. § 214.2(h)(7)(ii), specifies six aspects of the training program that must be described in the record. It states:

Description of training program. Each petition for a trainee must include a statement which:

(1) Describes [(a)] the type of training and supervision to be given, and [(b)] the structure of the training program;

(2) Sets forth the proportion of time that will be devoted to productive employment;

(3) Shows the number of hours that will be spent, respectively, [(a)] m

classroom instruction and [(b)] in on-the-job training;

(4) Describes the career abroad for which the training will prepare the alien;

(5) Indicates the reasons [(a)] why such training cannot be obtained in the alien's country and [(b)] why it is necessary for the alien to be trained in the United States; and

(6) Indicates [(a)] the source of any remuneration received by the trainee and [(b)] any benefit which will accrue to the petitioner for providing the training.

8 C.F.R. § 214.2(h)(7)(iii): Restrictions on training program

The regulation at 8 C.F.R. § 214.2(h)(7)(iii), Restrictions on training program for alien trainee, a list of eight proscribed deficiencies, any one of which will preclude an H-3 training plan from being approved as a valid basis for an H-3 trainee petition. The regulation reads as follows:

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Restrictions on training program for alien trainee. A training program may not be approved which:

(A) Deals in generalities with no fixed schedule, objectives, or means of evaluation;

(B) Is incompatible with the nature of the petitioner's business or enterprise;

(C) Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;

(D) Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;

(E) Will result in productive employment beyond that which is incidental and necessary to the training;

(F) Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States;

(G) Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or

(H) Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.

III. DIRECTOR'S GROUNDS FOR DENIAL

As we have noted, the director specified numerous, independent grounds for denying the petition. Her decision addresses these grounds in the order in which they relate to the particular H-3 regulatory provisions as they appear at 8 C.P.R. §§ 214.2(h)(7)(ii)(A), 214.2(h)(7)(ii)(B), and 214.2(h)(7)(iii) ..

The director first determined that the petition failed to satisfy the first three of the four conditions set forth in the evidentiary-requirement sections at 8 C.P.R. § 214.2(h)(7)(ii)(A), that is, the requirements to "demonstrate" (1) that the proposed training is not available in the alien's own country; (2) that the beneficiary "will not be placed in a position which is [(a)]) in the normal operation of the [petitioner's] business and [(b)] in which citizens and resident workers are regularly employed;" and (3) that the beneficiary "will not engage in productive employment unless such employment is incidental and necessary to the training."

Next, the director also found that the description of the training program was inadequate, in that it did not include a statement complying with the requirement, at 8 C.F.R. § 214.2(h)(7)(ii)(B)(2), thatis, a statement which " [ s Jets forth the proportion of time that will be devoted to productive

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employment."

The director also found that the petitioner's proposed training program triggered several 8 C.F.R. § 214.2(h)(7)(iii) restrictions against approval of certain types of training programs. The director found, specifically, that approval of this training program was proscribed by (1) subparagraph (C), that is, as a training program developed "on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training"; (2) subparagraph (E), as a training program that "[w]ill result in productive employment beyond that which is incidental and necessary to the training"; (3) subparagraph (F), as "designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States"; and (4) subparagraph (H), which proscribes approval of a training program which is "designed to extend the total allowable period of practical training previously authorized a nonimmigrant student."

IV. PRELIMINARY DETERMINATIONS

At the outset, we find that the evidence of record, as expanded by the submissions on appeal, does not support all of the grounds that the director's decision specified as independent bases for denying the petition. Specifically, we find that the evidence of record does not support the director's determinations (1) that the proposed training program is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States; and (2) that the training program was designed to extend the total allowable period of practical training previously authorized a nonimmigrant student. Accordingly, those two particular determinations are withdrawn, and neither remains as a basis for denying this particular petition.

However, as we shall now discuss, we also have determined that the evidence of record indicates that the director was correct to deny the petition on each of the other separate and independent grounds that she specified in the petition.

V. THE PROPOSED TRAINING PROGRAM

In its addendum to section 4 of the Form I-129, the petitioner indicates that its H-3 training program is geared towards its "plan to extend [its] personal training business to South Korea." According to the addendum, the petitioner intends specifically to branch into "successful functional training affiliates in South Korea." The thrust of the addendum is that the petitioner would use its H-3 training program to equip the trainees with "necessary skill and knowledge" so that the petitioner could employ them to "manage" the aforementioned functional training affiliates.

The addendum claims that the petitioner would have a competitive advantage in the South Korean market because the petitioner will provide a "cutting-edge evaluation program," to which the addendum refers as "Integrated Training for Function." The addendum asserts that "generally" the South Korean "health advancement facilities" focus upon increasing muscle strength, and "rarely emphasize on (sic) the proper and scientific evaluation of the condition of [their clients]," which the petitioner asserts to be a defining characteristic of the Integrated Training for Function that it provides in the United States and would expand to South Korea.

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In support of the Form I-129, the petitioner provided a document entitled "H-3 Training Program for Integrated Training for Function" (to which we will refer as "the TP outline"). The document describes the duration of training and proposed dates, reasons for training in the United States, and skills and knowledge to be acquired during the training. It also provides a training schedule, and an overview of courses for the program. In addition, the document describes the overall training objective as follows:

The goal objective of the training schedule is to provide our trainees with a foundation in human body system, human motor control, Functional Movement System in the personal training industry. They will learn technical, practical, and theoretical information about integrated training for function for various cases of clients including kids, elite athletes, and seniors.

Our trainees will gain an overview of all areas related to design and implementation of functional training program which is based on the functional movement system for group and individual recovery of physical function. The program will allow our trainees to follow functional recovery from conception to finalization. They will learn how to assess clients' different status and needs for normal function and movement system as well as the people needed.

They will learn how to anal[yze] clients' data and to design individualized functional training program. They will also learn how to teach and guide clients' functional recovery and regular exercise routines. They will learn [ s ]afety and health procedures for the fitness care. During the program, our trainees will visit developers and professions of functional movement system.

Upon completion of the training period, our trainee will be able to successfully control functional recovery process and develop integrated training for function program in their home country, South Korea. They will work for our affiliate company in South Korea as manager or special personal trainer.

For "Skills and Knowledge Acquired during Training" the petitioner's TP outline states:

Completion of this training program will provide our trainees with the knowledge and techniques they will need to manage group and individual training programs from start to finish.

They will gain this these techniques through class learning, observation of our current employees and actual practice. They will learn how to evaluate each person, how to design training programs and how to perform each program session by way of selecting training equipment formulated to individualized plans, adhering to standards and codes, managing individualized programs, re-evaluating programs, engaging in problem solving and interact with outside professions such as medical doctors, physical therapists, and typical strengthening and conditioning coaches.

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Skills and knowledge to be acquired during training include but [are] not limited to:

• Basic knowledge of Human Anatomy & Physiology, Biomechanics and Exercise Nutrition;

• Understanding of the design and development training program;

• Technical skills, including functional movement screening for the human body;

• Analyzing gait & posture, physical assessment, and functional screemng data;

• Implementing of functional exercise program, including demonstration and teaching exercise techniques for group and individual clients;

• Re-Evaluation, Testing, and modified program design;

• Certification requirements;

• Ethics and scope of professions

The petitioner's July 8, 2013 letter of support identifies the (which we shall refer to as ) as its "Core Program"; and the thrust of the totality of the evidence submitted in support of the proposed H-3 training program is that the program would equip the "Trainee for Health Training Specialist" to employ when that trainee is employed overseas as a "Health Training Specialist."

"Appendix C, Training Program," to the aforementioned July 8, 2013 letter from the petitioner includes:

1. The aforementioned TP outline, which is a five-page document;

2. A one-page "References" document, which is an outline identifying "texts" that will be used in four training sections which the document divides into "Introdcution"; "Basic Courses"; "Core Courses"; and "Optional Courses"; and

3. Copies of tables of contents from the various texts.

According to the TP outline, the training would take 16 months, from August 15, 2013 to December 14, 2014. The TP outline divides the program into two major parts, denoted as (1) "Classroom-type study with our academy program: August 15, 2013 to December 14, 2014". and (2) "On-the-job

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training: March 1, 2014 to December 14, 2014." The classroom-type-study part is further divided into three distinct periods, and the on-the-job-training part is further divided into five periods, which range from weeks to months. We note that for each training period the TP outline identifies subjects to be covered, but that it fails to provide a fixed schedule outlining details of how the training would be provided, e.g., by specific sessions identified by specific subject matter, allotted time, and means of evaluating trainee achievement in the specific area.

VI. ANALYSIS

A. Unavailability of Similar Training in the Beneficiary's Own Country

In the Form I-129, the petitioner claimed that it is a personal training and health education center. In its support letter dated July 81h 2013, the petitioner describes the "functional movement screen" (FMS) system as "our core program" in pages 3-4. In the TP outline, the petitioner states that "[t]raining in the United States will provide our trainees with knowledge ofthe functional movement system for the design of functional exercise program, which is not broadly used in South Korea." In the same document, the petitioner provides a breakdown of schedule for the program. It is noted that from August 15, 2013 to October 14, 2013, the petitioner states that the trainees will study the basic knowledge needed to develbp integrated exercise for function programs." Then from October 15, 2013 to November 30, 2013, the trainees will "obtain the basic concept of .

and will learn ' design, and gait and posture analysis system." From December 1, 2013 to February

28, 2014, the trainees will "learn how to use and maintain functional exercise equipment, including computerized body composition test machine, kettle bell, and battling rope exercise systems." Further, it appears that the petitioner also incorporates into its on-the job-training program. In response to the RFE, the petitioner emphasizes that it is a specialized facility and that in South Korea, "NO college or facility provides our Integrated Training for Functional Specialist Education Program or similar one, especially a program focusing of .

system."

However, on appeal, contrary to its previous emphasis on counsel and petitioner claim that ' is just part of our educational program" and "will be included in the second section of our lecture, which will focus on the exercise program design." The petitioner also asserts "our educational program is not just which requires about 1 month of time to become familiar with." Moreover, its support letter, the petitioner provided a description of as follows:

The is an innovative system used to evaluate movement pattern quality for clients or athletes. The beauty of the is that a personal trainer, athletic trainer or strength and conditioning coach can learn the system and have a simple and quantifiable method of evaluating basic movement abilities. The

allows a trainer or coach to begin the process of functional movement pattern assessment in individuals without recognized pathology. The is not intended to diagnose orthopedic problems but rather to demonstrate limitations or asymmetries in healthy individuals with respect to basic movement patterns and eventually correlate

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them with outcomes.

The provides a strength and conditioning coach or personal trainer with evaluation option that relates closely to what the client will actually do in training. In a sense, the tests are improved by working on variations of the skills tested. The allows evaluation with tools and movement patterns that readily makes sense to both the client and the trainer or coach.

The test is comprised of seven fundamental movement patterns that require a balance of mobility and stability. These fundamental movement patterns are designed to provide observable performance of basic loco motor, manipulative and stabilizing movements. The tests place the individual in extreme positions where weaknesses and imbalances become noticeable if appropriate stability and mobility is not utilized. It has been observed that many individuals who perform at very high levels during activities are unable to perform these simple movements. These individuals should be considered to be utilizing compensatory movement patterns during their activities, sacrificing efficient movements for inefficient ones in order to perform at high levels. If these compensations continue, then poor movement will be reinforced leading to poor biomechanics ..

Throughout the record of proceeding, the petitioner refers to the same description regarding , a description which we note is verbatim from an online article, accessible on the Internet at http://www.advanced-fitness-concepts.com/fms.pdf. The petitioner did not identify the source of the information, or acknowledge that the text was not its own. In his regard, we expressly find that there is no evidence that Screen was originated by the petitioner or that training in that methodology is available only through the petitioner.

Further, we note that on appeal, the petitioner submitted letters from two individuals that provide training in South Korea. We note that both letters contain the same language quoted above, verbatim from the above-mentioned online article. For example, the letter from states the "beauty of the : is that a personal trainer, athletic trainer or strength and conditioning coach can learn the system and have a quantifiable method of evaluating basic movement abilities." The letter from states "[t]hese fundamental movement patterns are designed to provide observable performance of basic loco motor, manipulative and stabilizing movements."

Even the appeal brief (at page 5) refers to as its "core program" while explaining that its training program is much broader. We also note that the Memorandum of Understanding (MOU) between the petitioner and in South Korea, states the MOU's purpose as launching "the program" described in the document, and paragraph 2 of the MOU also acknowledges the primacy of

stating:

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2. The Program

By agreeing with this memorandum, (the petitioner] shall provide center the newly established training program, so called " system." This includes evaluation methods, training material, and nutrition formula. (The petitioner] will also provide at least two Korean speaking certified trainers, who can successfully operate the program at center.

The regulation at 8 C.F.R. § 214.2(h)(7)(ii)(A)(l) requires the petitioner to "demonstrate" that the proposed training is not available in the beneficiary's own country, and 8 C.F.R. § 214.2(h)(7)(ii)(B)(5) requires the petitioner to submit a statement to indicate the reasons (1) why such training cannot be obtained in the alien's country and (2) why it is necessary for the alien to be trained in the United States.

In the TP outline, the petitioner claimed that "[t]raining in the United States will provide our trainees with knowledge of the functional movement system for the design of functional exercise program, which is not broadly used in South Korea." The petitioner further asserted that "[t]raining for Integrated Training for Function in the U.S. will give our trainees experience with a variety of group and personal training programs not commonly found in their native country, South Korea." The petitioner also stated that "the training system and programs provided in Korea only focus on the strengthening of muscles" and that they "rarely emphasize on the proper and scientific evaluation of the condition of the clients."

In response to the director's request for additional evidence that the proposed trammg is not available in the beneficiary's home country, the petitioner claimed that is a newly developed concept even in the U.S." The petitioner further asserted that "NO college or organization offers

training course in South Korea." Further, the petitioner also provided a letter from Junggi Hong, who is employed as an academic director for the petitioner. Mr. stated "[t]here are few trainers who can teach and train trainers in South Korea."

Notably, both the petitioner and Mr. _ do not state that similar training cannot be obtained in South Korea. They only state only state that it is "not commonly found" and that there "are few trainers who can teach and train trainers in South Korean." Therefore, they did not establish that such training cannot be obtained in South Korea but only that it is not commonly found and that there are only a few sources for such training.1

As mentioned, on appeal, the petitioner rovided letters from two training providers in South Korea, As discussed, the letters contain the same language from the petitioner's letters regarding FMS, verbatim from online sources. Although not in itself a

1 Although not decisive, we note that Home Study Course is available for certification at http://www (last visited on November 19, 2014).

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major facet of the record, we do find that such substantial similarity in content suggests that borrowed content from a common source. This in turn leads us to question the

extent of independent consideration that these two authors applied to the production of their letters. In any event, though, neither these two letters nor any other evidence in the record of proceeding "demonstrates"- as required by regulation - that the proposed training is not available in South Korea.

We note that, on appeal, the petitioner asserts "since we are trying to market our own health enhancement business based on the already proven training programs and marketing strategies as well as our unique combination of seasonal youth programs, there is no educational training program available in Korea." We note that while training that is specific to a petitioner can, depending upon the circumstances of the particular case, satisfy 8 C.F.R. §§ 214.2(h)(7)(ii)(A)(l) and 214.2(h)(7)(ii)(B)(5), in this case the petitioner has not explained with sufficient specificity how its training programs and marketing strategies as well as their seasonal youth programs are such that similar training cannot be obtained from a company similar to the petitioner in the beneficiary's home country. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Accordingly, the petitioner's claim that the training is specific to its company is not persuasive. In this regard, we note that, unless directly copied from another company's training program of the exact same content and order of training, no two training programs are likely to be exactly the same. However, that does not mean that Korean programs that may have different descriptive details than the one presented here would not provide essentially the same trainingoutcomes, skills, and knowledge as the one here proposed by the petitioner.

We also find that neither the TP outline nor any other evidence in the record of proceeding indicates with any specificity the substantive matters that will be drawn from the associated text list and excerpts. We find that those resources deal with broad areas and fields of knowledge that appear to be generally studied and widely practiced throughout the developed world, such as, for instance, anatomy, physiology, athletic training, sports medicine, exercise physiology, muscles testing and function, and nutrition. Therefore, because the petitioner has not shown what particular aspects of those resources its instruction and training would impart, and that such aspects would not be available through other channels in South Korea or elsewhere it has not demonstrated its use of any of those texts would impart knowledge, skills, or instruction that would not be available in South Korea and that would necessitate training in the United States . .

As the evidence of record has not satisfied the requirements at 8 C.F.R. § 214.2(h)(7)(ii)(A)(l) and 8 C.F.R. § 214.2(h)(7)(ii)(B)(5), the appeal will be dismissed and the petition denied on this basis.

B. Substantial Training and Expertise in the Proposed Field of Training

The regulation at 8 C.F.R. § 214.2(h)(7)(iii)(C) states that a training program may not be approved on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training.

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In the letter dated July 18, 2013 filed in support of the Form 1-129, the petitioner stated that the beneficiary received a bachelor's degree from � . The petitioner did not submit a copy of the beneficiary's academic credentials. However, the beneficiary's Form 1-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, indicates that the beneficiary's major was in Athletic Training/Trainer.

In addition, we look to the beneficiary's resume, whose accuracy the petitiOner endorsed by submitting it into the record, without any corrective comments. That resume indicates that the beneficiary has a substantial background in physical training and related health issues.

According to the resume, the beneficiary received a Bachelor of Science in Athletic Training in Sports Medicine/Public Health and Human Science from in June 2012?

The beneficiary's attainment of a degree with such a title, presumably after at least four-year schedule of related courses, strongly suggests that the beneficiary may have already received substantive college-level instruction in subject areas to be covered. We also see that the resume indicates substantial practical experience in athletic-training programs during the beneficiary's sophomore, junior, and senior years in college. Moreover, the record reflects that the beneficiary has been working as an intern at the petitioner's facility since February 2013. These aspects of the record require the petitioner to substantively address the material issue of why the beneficiary should not be regarded as already having substantial training and expertise in the proposed field of training, which would preclude approval of the petition.

The petitioner has not adequately explained why - in light of the record's information about the beneficiary's background - the beneficiary should not be regarded as a person for whom the proposed H-3 training may not be approved, pursuant to the restriction at 8 C.P.R. § 214.2(h)(7)(iii)(C) against approval of a training program offered "on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training."

We also note an additional factor which we do not consider a necessary basis for our finding above, but which nevertheless also weighs heavily against the petitioner's claim that the beneficiary does not have substantial knowledge and expertise in the field in which the training would be given. On December

24, 2014, we found the following entry about the beneficiary, on the petitioner's Internet site at http:/,

2 A search of the Internet located the petitioner's website at 1 com (last visited November 18, 2014). Under the section "About Us," the website lists the beneficiary as a Certified

Professional.

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In considering this information, we note that it appears on an Internet site apparently produced by the petitioner. It is reasonable to attribute to the petitioner statements that it presents in its own publications, regardless of the medium in which they may be translated. This Internet snapshot not only attributes a wide spectrum of education and experience in physical and health training, but it also suggests that the beneficiary is already substantially educated, trained, and experienced in the areas that would be the subject of the proposed training program. In this regard, the Internet profile speaks for itself. We also note, in particular, that, according to the beneficiary's profile, he is the Clinical Director" and is a "Certified Professional, '

The record as expanded on appeal does not overcome the evidence indicating that the proposed training program falls within the 8 C.F.R. § 214.2(h)(7)(iii)(C) proscription against approval of a training program offered "on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training."

C. Place in Normal Operation of Business and Productive Employment

The regulation at 8 C.P.R. § 214.2(h)(7)(ii)(A)(2) requires the'petitioner to "demonstrate" that "[t]he beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regular! y employed." Further, the regulation 8 C.P.R. § 214.2(h)(7)(ii)(A)(3) requires the petitioner to "demonstrate" that "[t]he beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training"; and, as a corollary, 8 C.P.R. § 214.2(h)(7)(iii)(E) proscribes approval of training program which "[w]ill result in productive employment beyond that which is incidental and necessary to the training may not be approved."

The director correctly noted in her decision that it appears that the beneficiary will be actively involved with patients or clients as a part of their training. The director further stated that it is not clear how much time on their on-the-job training program could be considered productive employment.

On appeal, the petitioner asserts that " [ o ]ur trainees will not be involved in productive employment except for some case study assignment.''3 The petitioner also states that "[f]or the first 6 and half

3 As previously noted, after filing this appeal, the petitioner filed an H-lB petition for one of the beneficiaries, which has been approved. Although not decisive, it appears that at least one of the originally intended trainees is now employed by the petitioner in a productive environment.

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months, our program focuses on classroom theoretical study" and "have classroom study including lecture, research, case study, and question and answer." The petitioner further indicates that " [ f]ollowing the classroom study, our trainee will have 9 and half months of On-the-Job training." We are not persuaded that this will be the case, in light of the record's failure to establish a definite schedule showing that distinct periods of classroom time, lectures, and research topics have been actually been determined and put in place, and in light of the fact that no evidence of record delineates what portions, if any, of the "on-the-job training" would not be productive employment.

The petitioner states that " [ u ]nder the direct supervision of our Academic Director and co-operation of our instructors, trainee will observe, learn and participate in the application of overall program." However, neither the TP outline nor any other evidence of record establishes the percentage of the beneficiary's on-the-job training that would not be productive employment; and there is no evidence that demonstrates that whatever percentage of the nine-plus months of "on-the-job" that would be productive employment would be both "incidental and necessary" to the training.

However, the petitioner did not state how much of on-the-job training is productive employment. It is noted that under 8 C.F.R. § 214.2(h)(7)(ii)(B)(2), each petition must include a statement which "sets forth the proportion of time that will be devoted to productive employment." Here, the petitioner did not address this issue. Further, we find that, given the lack of specific details as to the extent of client interaction and client instruction, at least over the nine-plus months of on-the-job training; given the length of the claimed on-the-job training; and given the fact that client interaction and instruction appear to be the material core of the petitioner's positions, the petitioner has not complied with the requirement at 8 C.F.R. § 214.2(h)(7)(ii)(A)(2) to "demonstrate" that "[t]he beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed."

Without providing information on how much of on-job-training program is productive employment, the petitioner failed to establish that the beneficiary will not be placed in a position which is in the normal operation of the business, and that the beneficiary will not engage in productive employment beyond what is incidental and necessary to the training.

Again, we note that going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190).

Thus, the appeal must also be dismissed for failing to satisfy each of the regulatory provisions at 8 C.F.R. § 214.2(h)(7)(ii)(A)(2), 8 C.F.R. § 214.2(h)(7)(ii)(B)(2), and 8 C.F.R. § 214.2(h)(7)(iii)(E).

D. Additional Basis for Denial

We further note that the petitioner's website at clinical director.

.com lists the beneficiary, as a

(b)(6)


Training Program's Generalities with No Fixed Schedule, Objectives, or Means of Evaluation

The regulation at 8 C.F.R. § 214.2(h)(7)(iii)(A) proscribes approval of a training program which "[d]eals in generalities with no fixed schedule, objectives, or means of evaluation."

Upon review, we find that the evidence of record presents a training program that lacks content sufficiently detailed to distinguish it from the content of training programs for which approval is proscribed by the provision at 8 C.F.R. § 214.2(h)(7)(iii)(A) against approving any training program that"[ d)eals in generalities with no fixed schedule, objectives, or means of evaluation."

The record of proceeding does not convey sufficiently specific information about what the beneficiary would actually be doing in the proposed training program. For example, the petitioner claims that from December 1, 2013 to February 28, 2014 that the beneficiary will learn "how to use and maintain functional exercise equi ment, including computerized body composition test machine, _ . . Kettle bell, and battling rope exercise systems." The petitioner further states that the beneficiary will also "learn how to use the software and hardware relating to this training program." However, it is not clear from the petitioner's two sentence summary of this portion of the training program what the beneficiary would actually be doing during this period of time; and the record contains no study materials or other evidence to document why using and maintaining functional exercise equipment such as kettle bell or use of software would take three months.

The petitioner's information about the proposed training program lacks content that is sufficiently detailed and specific as to establish that the beneficiary's time in training would be governed by a schedule which is, by its terms, recognizable as fixed, that is, already definitely determined by specific time periods designated for specific training, and also as characterized by specific objectives and specific methods for evaluating distinct areas of the proposed training.

As the proposed training program, as presented in the record of proceeding, falls within the proscription at 8 C.F.R. § 214.2(h)(7)(iii)(A) against approval of a training program that deals in generalities, the petition musty also be denied for this additional reason. Thus, if it were determined that the petitioner had overcome each of the director's grounds for denying this petition (which it has not), the petition could still not be approved.

VII. CONCLUSION AND ORDER

For the reasons discussed above, we conclude that the appeal must be dismissed, and the petition must be denied, on each of the following grounds: (1) failure to demonstrate that the proposed training is not available in the beneficiary's own country; (2) failure to demonstrate that the beneficiary would not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; (3) absence of a statement that describes the proportion of time devoted to productive employment; ( 4) failure to demonstrate that the beneficiary would not engage in productive employment beyond what is incidental and necessary to the training; and (5) training-program approval proscribed, because the training

(b)(6)


program is for a beneficiary who already possesses substantial training and expertise m the proposed field of training.

Beyond the decision of the director, we also concluded that the proposed trammg program, as presented in the record of proceeding, falls within the proscription at 8 C.F.R. § 214.2(h)(7)(iii)(A) against approval of a training program that deals in generalities, with no fixed schedule, objectives, or means of evaluation.

Consequently, the appeal will be dismissed and the petition will be denied.

An application or petition that fails to comply with the technical requirements of the law may be denied by us even if the service center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that we conduct appellate review on a de novo basis).

Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only if it shows that we abused our discretion with respect to all of the enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, aff'd. 345 F.3d 683.

The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an independent and alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed. The petition is denied.

(AAO JAN062015_02D5101) H-3 Trainee Appeal Dismissed-Training Program Had Issues

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