Non-Precedent Decision of the Administrative Appeals Office

MATIER OF H-, P.C. DATE: NOV. 28, 2016

APPEAL OF VERMONT SERVICE CENTER DECISION

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

The Petitioner, a law firm, seeks to extend the Beneficiary's temporary employment as a "legal research & technical writing specialist" under the H -lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB 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 a minimum prerequisite for entry into the position.

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The Director, Vermont Service Center, denied the petition. The Director concluded that the Petitioner did not establish that the job offered qualifies as a specialty occupation.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and asserts the proffered position qualifies as a specialty occupation. _/

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

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 minirrmm 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 non­exhaustive 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:

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(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;

(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.P.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently interpreted the term "d~gree" 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. Chertoff, 484 F.3d 139, 147 (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).

II. PROFFERED POSITION

In the H-lB petition, the Petitioner stated that the Beneficiary will continue to serve as a legal research & technical writing specialist. In the support letter, the Petitioner provided the following job duties for the position:

The job duties for the Legal Research and Technical Writing Specialist shall continue to focus on writing materials that will be used for publication on the firm's website, newsletters, client opinion letters, and memoranda of law both in English and Spanish, explaining complex legal matters, procedures, and changes in the law in an array of areas including commercial and residential real estate law, corporate law, small business law, immigration law, real estate litigation as well as other matters. The position requires the beneficiary to organize writing materials in both English and Spanish for order, clarity, conciseness, style and terminology, edit the materials prepared by other writers, including matters for publication on the firm's website, newsletters, client opinion letters and memoranda of law. The beneficiary will also prepare PowerPoint presentations for the firm's seminar work, which includes topics such as first time home buying, immigration law, landlord tenant disputes, small business and corporate law and condominium association management. The position also requires the beneficiary to ,research and prepare speeches regarding legal topics for radio broadcast for firm marketing and informational radio programs.

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The Legal Research and Technical Writing Specialist will write explanatory material for an array of topics that are of significant importance for [the Petitioner's] client base. These includes "how-to" manuals regarding the formation and management of corporations, limited . liability companies and other corporate forms under Massachusetts Law, as well as updates to these matters based upon statutory changes and impactful case law. In addition,. it will include the drafting of employee handbooks and manuals for our small business clients, as well as explanatory n;taterials regarding licensing and zoning compliance for small businesses. The materials that are not client-specific will be published on the firm's website. These materials must also be accessible in both English and Spanish, so that the Legal Research and Technical Writing Specialist must be fluent in both English and Spanish to effectively perform. The Legal Research and Technical Writing Specialist will also write general and case-specific guides designed to assist in keeping our clients informed and educated about the legal processes that they are undergoing. These materials are designed to educate current and potential clients regarding the legal concepts and formal j~dicial procedures involved in a wide variety of cases, and must be written in a manner that conveys complex legal concepts and judicial formalities that are understandable to the layman.

The Legal Research and Writing Technical Specialist will also edit and fact check materials prepared by other writers, most commonly attorneys in the law firm, who prepare written materials for publication, whether on the firm's website, social media, newsletter or in third-party publications, such as newspapers, legal journals, websites or social media blogs. The position will also require maintaining of records of published materials and revisions.

In addition, the Legal Research and Technical Writing Specialist prepares the written speeches and presentations for the seminar work performed by the firm. This will include presentation of PowerPoint presentations based on various legal topics. The presentation of these topics includes researching the particular areas of law, as well as current trends in law and procedure, and the ability to explain those areas of law and legal trends in non-technical terms to an audience of non-lawyers. Again, these seminars are presented in both English and Spanish, so fluency in both languages is essential to the position.

In response to the Director's request for evidence (RFE), the Petitioner provided the following breakdown of time to be spent performing these specific duties:

• 25% - Researching topics of law, including applicability to the firm's client base, and case law and statutory law for accuracy, for one form of publication or another.

• 50% -.Drafting written materials as well as planning broadcast and presentation materials based upon the results of its research.

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• 25% -Researching and creating written materials in the form of handbooks, guides or other types of explanatory materials for individual clients which are not for general publication or distribution.

The Petitioner stated that the position requires a bachelor's degree in law, English and Spanish language fluency, and that "it is important that the individual possess prior practical legal experience."

III. 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.1

Specifically, the record does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation.2

A. First Criterion

We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(i), 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 U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses?

On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner designated the proffered position under the occupational category "Technical Writers" corresponding to the Standard Occupational Classification code 27-3042.4 The Handbook states the following about entry into this occupational category:

1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 2 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position and its business operations. Whi~e we may not discuss every document submitted, we have reviewed and considered each one. 3 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 wicfe 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. 4 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: (1) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive

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A college degree is usually required for a position as a technical writer. In addition, experience with a technical subject, such as computer science, Web design, or engineering, is important.

Education

Employers general prefer candidate with a bachelor's degree in journalism, English, or communications. Many technical writing jobs require both a degree and knowledge in a specialized field, such as engineering, computer science, or medicine. Web design experience also is helpful because of the growing use of online technical documentation.

U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Technical Writers," http://www .bls.gov /ooh/media -and-communication/technical-writers. htm#tab-4 (last visited Nov. 28, 2016).

The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for these positions. To the contrary, while the Handbbok states that bachelor's degree in journalism, English, or communications is generally preferred," it only states a usual requirement for a "college degree." A "college degree" is not necessarily a "bachelor's degree"; the terms are not synonymous.5 As the Handbook states neither the type of"college degree" to which it refers (e.g., associate's degree, bachelor's degree, etc.), nor a "requirement" for any specific field of study other beyond a general preference for the fields of journalism, English, or communications, it does not establish that a bachelor's degree in a specific specialty, or the equivalent, is normally required.

In addition, when comparing the duties of the proffered position to the types of positions located within this occupational category, it is important to consider the wage-level the Petitioner designated on the LCA. Again, the Petitioner has stated that it will pay the Beneficiary a Level I wage, which indicates that the Beneficiary will be expected to perform routine tasks that require limited, if any,

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://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ll_ 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 ofthe Petitioner's job opportunity. Id. 5 We decline to fmd that DOL intended the terms "college degree" and "bachelor's degree" to be considered interchangeable. DOL's own O*Net Summary Report for Technical Writers reported that of individuals working in positions located within this occupational category, 35 percent of respondents possessed an associate's degree, and 16 percent had attended some college but not earned a degree. Thus, according to DOL, a majority of surveyed individuals who are employed within this occupational category do not possess a bachelor's degree. U.S. Dep't of Labor, Employment & Training Administration, O*Net Online, "Summary Report for 27-3042.00 - Technical Writers," http://www.onetonline.org/link/summary/27-3042.00#Education (last visited Nov. 28, 2016). Consequently, we find that DOL did not intend to use the terms "college degree" and "bachelor's degree" interchangeably.

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exercise of judgnient; that he will be closely supervised and his work closely monitored and reviewed for accuracy; and that he will receive specific instructions on required tasks and expected results. Further, the above-referenced DOL guidance states that a Level I wage should be considered when the job offer is for a research fellow, a worker in training, or an internship. Given the Handbook's implication that typical positions located within this occupational category do not require a bachelor's degree in a specific specialty, we find it unlikely that an entry-level position with those characteristics would have such a requirement. 6

The Petitioner has not established that the proffered position falls within an occupational category for which the Handbook, or any other relevant, authoritative source, indicates that the normal minimum entry requirement is at least a bachelor's degree in a specific specialty, or the equivalent. Consequently, the evidence of record does not support a finding that the particular position proffered here, an entry-level position located within. the technical writers occupational category, would normally have such a minimum specialty degree requirement, or the equivalent. The duties and requirements of the position as described by the Petitioner do not indicate that it is one for which a bachelor's or higher degree in a specific specialty, or the equivalent, is normally required. The Petitioner therefore has not satisfied !he criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).

B. 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.P.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong casts its gaze 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

6 Given the Petitioner's assertions regarding the proffered position and the evidence it submits in their support, its foreign-language requirement, and its experience requirement, this wage-level designation on the LCA raises questions as to whether the LCA actually corresponds to and supports the H-lB petition. While we will not explore the issue of the LCA in depth here, the Petitioner should be prepared to address it in any future H-lB filings because it appears to constitute an additional ground of ineligibility.

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and recruit only degreed individuals." See Shanti, Inc. v~ Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quotingHird!Blaker Corp. v. Sava, 712 E Supp. 1095, 1102 (S.D.N.Y. 1989)).

As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or other authoritative source, reports an industry-wide requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Also, there are no submissions from professional associations, individuals, or similar firms in the Petitioner's industry attesting that individuals employed in positions parallel to the proffered position are routinely required to have a minimum of a bachelor's degree in a specific specialty or its equivalent for entry into those positions. Nor is there any other evidence for our consideration under this prong.

The Petitioner therefore has not satisfied the first alternative prong of 8 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.

In support of the petition, the Petitioner claims that the Beneficiary is well-qualified for the position, and references his qualifications. 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 submitted four letters of suppprt from organizations that have utilized the services of the Petitioner which include the following: (1) (2) Director of (3) Executive Director,

and, ( 4) Manager of Homeownership Services,

The letters confirm a working relationship with the Petitioner, and each indicated that the written materials and presentations provided by the Petitioner are helpful to their clients. The letters state that the written materials and presentations provide a step by step process written in layman's terms. However, the letters do not specifically identify the duties performed by the Beneficiary, and do not provide sufficient evidence to establish that the position is so complex or unique that only a specifically degreed individual could perform its duties.

The work product submitted by the Petitioner has been similarly reviewed. We do not question the veracity these materials or their value to the Petitioner and its clients. Nor do we question that their preparation required knowledge and expertise. Again, however, they do not establish that the proffered position is so complex or unique that it can only be performed by an individual with at least a bachelor's degree in a specific specialty, or its equivalent.

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We discussed the Handbook's findings regarding the occupational category into which the Petitioner placed the proffered position above. As noted, the Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is normally required. While the letters and work product, as well as the Petitioner's associated claims, are acknowledged, thePetitioner's Level I wage designation undermines it significantly. 7 In other words, if typical positions located within the occupational category do not require a bachelor's degree in a specific specialty, or the equivalent, then it is unclear how a position with the Level I characteristics described above would, regardless of the Petitioner's assertions.

Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. §.214.2(h)(4)(iii)(A)(2).

C. Third Criterion

The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position.

While the Petitioner's statement in the RFE that the proposed duties were previously performed by attorneys, it did not explain the percentage of time those attorneys spent on the duties required of the Beneficiary. In any event, the record contains no evidence for our consideration under this criterion.

Thus, the Petitioner has not satisfied the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3).

D. 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.

The Petitioner submitted several samples of work product written by the Beneficiary. However, the Petitioner does not explain the complexity, uniqueness and/or specialization of the tasks involved in producing these materials, and/or the correlation between that work and a need for a particular level

7 The Petitioner's designation of this position as a Level i, entry-level position undermines 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 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)(l) of the Act.

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education of highly specialized knowledge in a specific specialty. The Petitioner does not articulate how these samples evidence work duties that are so specialized or complex that the knowledge required to perform them is usually associated with the attainment of a bachelor's degree in a specific specialty.

We acknowledge the Petitioner's assertions regarding the specialization and complexity of the position's duties. However, as above, those claims are undermined by the Petitioner's Level I wage designation. Again, in classifying the proffered position at a Level I (entry-level) wage, the Petitioner effectively attested to DOL that the Beneficiary would perform routine tasks that require limited, if any, exercise of judgment, that he would be closely supervised and his work closely monitored and reviewed for accuracy, and that he would receive specific instructions on required tasks and expected results. 8 The DOL guidance referenced above states that an employer should consider a Level I wage designation when the job offer is for a research fellow, a worker in training, or an internship. The Petitioner has not demonstrated in the record that its proffered position is one with duties sufficiently specialized and complex to satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4).

E. Prior H-lB Approvals

On appeal, the Petitioner emphasizes that the proffered position is the same position in job title and duties as the previously approved H-lB petition filed by the Petitioner on behalf of the Beneficiary. The Petitioner also references an April23, 2004, memorandum authored by William R. Yates (Yates memo) as establishing that US CIS must give 'deference to those prior approvals or provide detailed explanations why deference is not warranted. Memorandum from William R. Yates, Associate Director for Operations, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity, HQOPRD 72/11.3 (Apr. 23, 2004).

First, we must note that the Yates memo specifically states as follows:

. . . Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology International, 19 I&N 593, 597 (Comm. 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 C.F.R. § 103.8(d).

8 Again, the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that its duties are particularly complex, specialized, or unique compared to other positions within the same occupation.

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... Material error, changed circumstances, or new material information must be clearly articulated in the resulting request for evidence or decision denying the benefit sought, as appropriate.

Thus, the Yates me:mo does not advise adjudicators to approve an extension petition when the facts of the record do not demonstrate eligibility for the benefit sought. On the contrary, the memorandum's language quoted immediately above acknowledges that a petition should not be approved where, as here, the Petitioner has not demonstrated that the petition should be granted.

Again, as indicated in the Yates memo, we are not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter ofChurch Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). If the previous nonimmigrant petition was approved based on the same description of duties and assertions that are contained in the current record, it would constitute material and gross error on the part of the Director. It would be "absurd to suggest that [USCIS] or any agency must treat acknowledged errors as binding precedent." Sussex Eng'g, Ltd v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its burden to provide sufficient documentation to establish current eligibility for the benefit sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.P.R. pt. 214). A prior approval also does not preclude USCIS from denying an extension of an original visa petition based on a reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x. 556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director had approved nonunmigrant petitions on behalf of a beneficiary' we would not be bound to follow the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999).

Second, the memorandum clearly states that each matter must be decided according to the evidence of record. In the appeal, the Petitioner suggests that USCIS was required to look at the prior records of proceedings dealing with the separate adjudication of the approved H-1B petition filed on behalf of the Beneficiary and provide a reason why deference is not warranted.

Copies of that petition, however, were not included in the record and, therefore, this claim is without merit. If a petitioner wishes to have prior decisions considered by USCIS in its adjudication of a petition, the petitioner is permitted to submit copies of such evidence that it either obtained itself and/or received in response to a Freedom of Information Act request filed in accordance with the applicable regulations. Otherwise, "[t]he non-existence or other unavailability of required evidence creates a presumption of ineligibility." 8 C.P.R. § 103.2(b )(2)(i).

When "any person makes application for a visa or any other document required for entry, or makes application for admission, ... the burden of proof shall be upon such person to establish that he is eligible" for such benefit. Section 291 of the Act, 8 U.S.C. § 1361; see also Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972). Each nonimmigrant and immigrant petition

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is a separate record of proceedings with a separate burden of proof. Each petition must stand on its OWn individual merits. There is no requirement either in the regulations or in USCIS procedural documentation requiring nonimmigrant petitions to be combined in a single record of proceedings.9

Accordingly, the Director was not required to request and obtain a copy of the prior H-1B petition.

Again, the Petitioner in this case has not submitted copies of the prior H-1B petition and its supporting documents. As the record of proceedings does not contain any evidence of the petitions, there were no underlying facts to be analyzed and, therefore, no prior, substantive reasons could have been provided to explain why deference to the approvals of the prior H-1B petition was not warranted. The burden of proving eligibility for the benefit sought remains entirely with the Petitioner. Section 291 of the Act. For this additional reason, the Yates memo does not apply in this instance.

Finally, the Petitioner also cites to an unpublished AAO decision it claims involved a similar position. Again, when "any person makes application for a visa or any other document required for entry, or makes application for admission, ... the burden of proof shall be upon such person to establish that he is eligible" for such benefit. Section 291 of the Act, 8 U.S.C. § 1361; see also Matter of Treasure Craft of Cal., 14 I&N Dec. at 190. Furthermore, any suggestion that USCIS must review unpublished decisions and possibly request and review each case file relevant to those decisions, while being impractical and inefficient, would also be a shift in the evidentiary burden in these proceedings from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361. Accordingly, neither the Director nor our office was required to request and/or obtain a copy of the unpublished decision cited by the Petitioner.

As noted, if a petitioner wishes to have unpublished decisions considered by USCIS in the adjudication of a petition, the petitioner is permitted to submit copies of such evidence that it either obtained itself through its own legal research and/or received in response to a Freedom of Information Act request filed in accordance with the applicable regulations. While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding.

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.

('

9 USCIS does not engage in the practice of reviewing previous nonimmigrant petitions when adjudicating extension petitions. Given the various and changing jurisdiction over various nonimmigrant petitions and applications, requiring previously adjudicated nonimmigrant petitions to be reviewed before any newly filed application or petition could be adjudicated would result in extreme delays in the processing of petitions and applications. Furthermore, such a suggestion, while being impractical and inefficient, would also be a shift in the evidentiary burden in this proceeding from the Petitioner to USCIS, which would be contrary to section 291 of the Act, 8 U.S.C. § 1361.

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IV. CONCLUSION

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

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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of H-, P.C., ID# 41366 (AAO Nov. 28, 2016)

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