Matter of Caron International, Inc.

In Visa Petition Proceedings

在签证申请程序中

This is an appeal from the adverse decision of the director, Northern Regional Service Center. The appeal will be sustained.

这是对北区服务中心主任不利决定的上诉。上诉将获支持。

The petitioner is a manufacturer and dyer of hand knitting and industrial yarns. It seeks to classify the beneficiary as a nonimmi- grant of distinguished merit and ability pursuant to section 101(a)(15)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i) (1982), based on its intent to employ him as its vice-president of manufacturing. The director determined the petitioner had failed to establish that the proposed position is within the professions or requires a person of distinguished merit and ability. The director also found the petitioner had failed to establish that the beneficiary has at least a bachelor's degree or its equivalent or that he is preeminent in his field of endeavor. On appeal, counsel asserts the proposed position is professional, and the beneficiary has attained professional status even though he does not have a bachelor's degree. Counsel also asserts the bene- ficiary is preeminent in the field of textile manufacturing. As noted by the director, distinguished merit and ability may be established in either of two ways. Persons classifiable as profession- als based on their academic credentials within the meaning of sec- tion 101(a)(32) of the Act are classifiable as aliens of distinguished merit and ability. Matter of Essex Cryogenics Industries, Inc., 14 I&N Dec. 196 (D.A.C. 1972). Matter of General Atomic Company, 17 I&N Dec. 532 (Comm. 1980). Also, aliens of prominence, renown, or preeminence in their field of endeavor are classifiable as aliens of distinguished merit and ability. Matter of Shaw, 11 I&N Dec. 277 (D.D. 1965). In 1970, the Immigration and Nationality Act was amended to permit the temporary entry to the United States of "H-1" nonim- migrants to perform services which are either temporary or perma- nent in nature. The House Committee Report which accompanied the legislation, H.R. Rep. No. 851, 91st Cong., 2d Seas., reprinted in 1970 U.S. Code Cong. & Ad. News 2750, 2752-53, stated:

申请人是一家手工编织纱线和工业纱线的制造商和染整商。它寻求根据《移民和国籍法》第101(a)(15)(H)(i)条，8 U.S.C. § 1101(a)(15)(H)(i) (1982)，将受益人归类为具有杰出功绩和能力的非移民，依据是其打算雇用他担任制造副总裁。 主任认定申请人未能证明拟议职位属于专业范畴或需要具有杰出功绩和能力的人。主任还认定申请人未能证明受益人至少具有学士学位或同等学历，或在其从事领域具有卓越地位。 在上诉中，律师主张拟议职位是专业性的，且受益人即使没有学士学位也已取得专业地位。律师还主张受益人在纺织制造领域具有卓越地位。 正如主任所指出的，杰出功绩和能力可以通过两种方式之一来确立。根据该法第101(a)(32)条的含义，基于其学历资格可归类为专业人士的人，可归类为具有杰出功绩和能力的外国人。Matter of Essex Cryogenics Industries, Inc., 14 I&N Dec. 196 (D.A.C. 1972)。Matter of General Atomic Company, 17 I&N Dec. 532 (Comm. 1980)。此外，在其从事领域具有显赫、著名或卓越地位的外国人，可归类为具有杰出功绩和能力的外国人。Matter of Shaw, 11 I&N Dec. 277 (D.D. 1965)。 1970年，《移民和国籍法》经修正，允许“H-1”非移民临时进入美国从事性质为临时或永久的服务。伴随该立法的众议院委员会报告，H.R. Rep. No. 851, 91st Cong., 2d Seas., 重印于1970 U.S. Code Cong. & Ad. News 2750, 2752-53，指出：

Distinguished merit and ability implies a degree of skill and recognition substan- tially above that ordinarily encountered to the extent that a person so described is prominent or has a high level of education in his field of endeavor. (Emphasis added.) Careful review of the record of proceeding in the light of the above administrative case law and legislative history reflects the petitioner has not established the beneficiary is eligible for "H-1" classification based on membership in the professions. However, the petitioner has established the beneficiary is eligible for this classification based on prominence or preeminence as a business executive. Similarly, the petitioner has not established that the proposed position is within the professions but has established that

杰出功绩和能力意味着技能和认可度实质上高于通常所遇到的水平，以致如此描述的人在其从事领域具有显赫地位或高水平教育。（着重号为原文所加。） 根据上述行政判例法和立法历史对程序记录的仔细审查表明，申请人未能证明受益人基于专业人士身份有资格获得“H-1”分类。但是，申请人已证明受益人基于作为企业高管的显赫或卓越地位有资格获得该分类。同样，申请人未能证明拟议职位属于专业范畴，但已证明

the proposed position requires a prominent or preeminent business executive.

拟议职位需要一位显赫或卓越的企业高管。

The Supreme Court interpreted the term "profession" in United States v. Laws, 163 U.S. 258 (1896), in which it adopted the follow- ing meaning of "profession" from the Century Dictionary:

最高法院在United States v. Laws, 163 U.S. 258 (1896)中解释了“专业”一词，其中它采用了《世纪词典》对“专业”的以下含义：

The word implies professed attainments in special knowledge, as distinguished from mere skill, a practical dealing with affairs, as distinguished from mere study or investigation; and an application of such knowledge to uses for others, as a vo- cation, as distinguished from its pursuit for its own purposes. Id. at 266. The Court concluded that a "chemist who places his knowledge acquired from a study of the science to the use of others, as he may be employed by them" is "engaged in. the prac- tice of a profession." Id. The Supreme Court's interpretation of the term "profession" as requiring knowledge or learning, as opposed to mere skill, was af- firmed in subsequent case law. See .Pizarro v. District Director of United States IAN Serv., 415 F.2d 481 (9th Cir. 1969); Javier v. Im- migration RE Naturalization Service, 335 F. Supp. 1391 (N.D. Ill. 1971); Buckley v. Gibney, 332 F. Supp. 790 (S.D.N.Y. 1971); Yau v. District Director of U.S. Immigration & Nat. Serv., 293 F. Supp. '717 (C.D. Cal. 1968); Abbott v. United States, 151 F. Supp. 929 (Ct. Cl. 1957). The term "profession" is defined by example in section 101(a)(32) of the Act. That section states:

该词意味着在特殊知识方面公开宣称的造诣，区别于单纯的技能；是对事务的实际处理，区别于单纯的学习或调查；以及将此种知识应用于为他人服务，作为一种职业，区别于为其自身目的而追求。 Id. at 266。法院得出结论，“将其从科学研究中获得的知识用于为他人服务，如他可能受雇于他们”的“化学家”是“从事专业实践”。Id. 最高法院将“专业”一词解释为要求知识或学问而非单纯技能，这一解释在随后的判例法中得到确认。见Pizarro v. District Director of United States I&N Serv., 415 F.2d 481 (9th Cir. 1969)；Javier v. Immigration & Naturalization Service, 335 F. Supp. 1391 (N.D. Ill. 1971)；Buckley v. Gibney, 332 F. Supp. 790 (S.D.N.Y. 1971)；Yau v. District Director of U.S. Immigration & Nat. Serv., 293 F. Supp. 717 (C.D. Cal. 1968)；Abbott v. United States, 151 F. Supp. 929 (Ct. Cl. 1957)。 “专业”一词在该法第101(a)(32)条中以举例方式界定。该条规定：

The term "profession" shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. The clearest common denominator for professional standing is at least a baccalaureate degree awarded for academic study in a spe- cific discipline or narrow range of disciplines. This requirement is explained in numerous Immigration and Naturalization Service precedent decisions dating back to 1966. E.g., Matter of Portugues Do Atlantico Information Bureau, Inc., 19 I&N Dec. 194 (Comm. 1984); Matter of Ahmed, 12 MEN Dec. 498 (R.C. 1967); Matter of Pa- lanky, 12 I&N Dec. 66 (R.C. 1966); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). It is also well established that some professions (for ex- ample, those of physicians, surgeons, psychologists, and librarians) require advanced degrees. Matter of Pizarro, 12 I&N Dee. 527 (RC. 1967); Matter of Shih, 11 I&N Dec. 847 (D.D. 1966). For a job to be considered within the professions, it is not enough that a petitioner desires to employ a person with a degree. The

“专业”一词应包括但不限于建筑师、工程师、律师、医生、外科医生以及小学或中学、学院、专科学校或神学院的教师。 专业地位最明确的共同标准至少是在特定学科或狭窄学科范围内因学术学习而授予的学士学位。这一要求在许多可追溯至1966年的移民和归化局先例决定中得到解释。例如，Matter of Portugues Do Atlantico Information Bureau, Inc., 19 I&N Dec. 194 (Comm. 1984)；Matter of Ahmed, 12 I&N Dec. 498 (R.C. 1967)；Matter of Palanky, 12 I&N Dec. 66 (R.C. 1966)；Matter of Shin, 11 I&N Dec. 686 (D.D. 1966)。同样已确立的是，某些专业（例如医生、外科医生、心理学家和图书馆员）需要高级学位。Matter of Pizarro, 12 I&N Dec. 527 (R.C. 1967)；Matter of Shih, 11 I&N Dec. 847 (D.D. 1966)。 要使某一工作被视为属于专业范畴，仅凭申请人希望雇用具有学位的人是不够的。

degree requirement must be an industry standard in parallel posi- tions among similar firms and institutions- In addition, it must be shown. the employer normally imposes this requirement. The referenced definition of "profession" cited in United States v. Laws, supra, recognized that "as the applications of science and learning are extended to other departments of affairs, other voca- tions also receive the name" profession. Id. at 266. The Service also acknowledged this fact in Matter of Shin, supra, in stating that "the vocations included in the term 'profession' in our modern highly industrialized society are constantly expanding, consistent with the greater knowledge and specialized training that such a so- ciety demands." Id. at 687. R is noteworthy that in Matter of Pan- ganiban, 13 I&N Dec. 581 (D.A.C. 1970); and Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988), the Service accord- ed professional recognition to occupations it had previously held to be nonprofessional. The Service also recognizes that some occupations may be in transition from nonprofessional to professional status. In these transitional occupations, it may be possible for some employers to establish the professional nature of positions by demonstrating that they have consistently required the higher standard of a specific baccalaureate or advanced degree for the more complex positions within their organizations.

学位要求必须是类似公司和机构中平行职位的行业标准。此外，必须证明雇主通常施加这一要求。 United States v. Laws, supra中引用的“专业”定义承认，“随着科学和学问的应用扩展到事务的其他部门，其他职业也获得”专业“的名称”。Id. at 266。该局在Matter of Shin, supra中也承认了这一事实，指出“在我们现代高度工业化的社会中，'专业'一词所包括的职业不断扩展，这与该社会所要求的更多知识和专门培训相一致。”Id. at 687。值得注意的是，在Matter of Panganiban, 13 I&N Dec. 581 (D.A.C. 1970)和Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988)中，该局对先前认定为非专业的职业给予了专业认可。 该局还承认，某些职业可能正处于从非专业向专业地位过渡的过程中。在这些过渡性职业中，一些雇主可能能够通过证明其组织内更复杂的职位一贯要求更高的特定学士或高级学位标准，来确立职位的专业性质。

In this proceeding, the petitioner has failed to establish that the proposed position of vice-president of manufacturing in its organi- zation actually requires at least a specific baccalaureate-level aca- demic degree. In fact, general managerial occupations such as those of vice-president are normally not considered to be profes- sional endeavors requiring specific academic degrees. A manager is not considered to be a member of the professions unless he or she is qualified for, and intends to work in, a professional occupation requiring the attainment of such a degree. Matter of Ling, 13 I&N Dec. 35 (R.C. 1968), holds that "business administration" is a general term including both professional and nonprofessional activities. The Department of Labor's Occupational Outlook Handbook (1988-89) gives, on page 26, the following infor- mation about the qualifications and training of general managers and top executives:

在本程序中，申请人未能证明其组织中拟议的制造副总裁职位实际上要求至少特定的学士水平学位。事实上，一般管理类职业，如副总裁，通常不被视为需要特定学位的专业工作。除非经理有资格从事并打算从事需要取得此类学位的专业职业，否则不被视为专业人士。 Matter of Ling, 13 I&N Dec. 35 (R.C. 1968)认定，“工商管理”是一个通用术语，既包括专业活动也包括非专业活动。劳工部的《职业展望手册》（1988-89）在第26页提供了以下关于总经理和高级管理人员的资格和培训的信息：

Interim Decision #3085

临时决定第3085号

While the recent edition of the Occupational Outlook Handbook reflects that higher education is becoming increasingly prevalent among rnanagers and executives, it does not establish that at least a baccalaureate-level degree in a specific major or even a narrow range of majors is required for all or most occupations within this broad field. Further, mere first-line supervision of ordinary produc- tion work or very general management activities do not qualify as professional. On appeal, counsel submits three letters from universities which he asserts demonstrate that the position of vice-president of manu- facturing in the textile industry requires a person with a baccalau- reate degree. Additionally, counsel submits a letter from the Amer- ican Yarn Spinners Association, Inc. in support of this proposition. This Service may, in its discretion, use as advisory opinions state- ments from universities, professional organizations, or other sources submitted in evidence as expert testimony. Nevertheless, since the Service is responsible for making the final determination regarding a beneficiary's eligibility for the benefit sought, where an opinion is not in accord with other information or is in any way questionable, the Service is not required to accept or may give less weight to that evidence. The above letters do not establish the proposed position of vice- president of manufacturing with this petitioner is within the pro- fessions. One of the university letters admits, "To proceed without formal textile education is definitely possible, but even more years of manufacturing experience in the field is required." The other two university letters indicate the position of vice-president of man- ufacturing is "normally filled" by people with college degrees, but this does not mean the degrees are actually necessary. Similarly, the letter from the American Yarn Spinners Association does not, in fact, state a specific academic degree is actually the minimum prerequisite for the position of vice-president of manufacturing in the textile industry.

虽然最新版《职业展望手册》反映出高等教育在经理和高管中日益普遍，但它并未确立以下事实：在这一广泛领域内，所有或大多数职业都要求至少具有特定专业甚至狭窄专业范围内的学士水平学位。此外，仅仅对普通生产工作进行一线监督或从事非常一般的管理活动，并不符合专业性的要求。 在上诉中，律师提交了三封来自大学的信件，他主张这些信件证明纺织行业制造副总裁职位要求具有学士学位的人担任。此外，律师还提交了一封来自美国纺纱商协会（American Yarn Spinners Association, Inc.）的信件以支持这一主张。本局可以酌情将作为专家证词提交的大学、专业组织或其他来源的陈述用作咨询意见。然而，由于本局负责对受益人是否有资格获得所寻求的福利作出最终裁定，当某项意见与其他信息不一致或在任何方面存疑时，本局无需接受该证据，或可以给予其较低的权重。 上述信件并未确立本申请人所提议的制造副总裁职位属于专业职业。其中一封大学信件承认：“在没有正规纺织教育的情况下继续工作绝对是可能的，但需要在该领域拥有更多年的制造经验。”另外两封大学信件表明，制造副总裁职位“通常由”拥有大学学位的人担任，但这并不意味着学位实际上是必需的。同样，美国纺纱商协会的信件实际上并未说明特定学位是纺织行业制造副总裁职位的实际最低先决条件。

Together, the three university letters allow for a relatively broad range of major fields of study as prerequisites to the position of vice-president of manufacturing, not a specific major or narrow range of majors. The majors cited in the three letters are (1) busi- ness or engineering; (2) mechanical engineering, chemical engineer- ing, textile science, textile chemistry, or industrial management; (3) textile management and technology. Some textile manufacturing firms may be able to establish a need for vice-presidents of manufacturing or other managers with at least baccalaureate-level degrees in one or more of the fields mentioned in the university letters. In this case, counsel asserts the new yarn manufacturing technology requires that the beneficiary have knowledge of the "long-fibre system" and understand the complexities of modern machinery. Counsel also asserts the pro- posed duties relate to the development of recently installed coin- puterized systems. However, the record does not demonstrate specifically how the proposed duties are so specialized and complex that a university- educated person is actually necessary. Nor has the petitioner estab- lished the beneficiary would be personally involved in unusually complex duties such as training, trouble -shooting complex equip- ment or systems problems, or negotiating complicated counteracts which would make professional knowledge and background virtual- ly indispensable. The proposed position, which reports directly to the president, is the top manufacturing position in the company. According to the petitioner's organizational chart, several managers report to this position. The duties of the proposed position do not appear materi- ally different from the general duties normally performed by a vice-president which, as noted above, are usually not considered professional. The petitioner asserts the last person employed in the proposed position had a B.S. degree from Maine Maritime Academy and ex- tensive experience in the textile industry. As noted by the director, since this degree is not related to the textile industry, the individ- ual's experience is what qualified him for the position. It therefore appears the position can be performed successfully by an experi- enced person whose education and training are not equal to a bac- calaureate degree in a specialized area. Counsel argues the proposed position is within the professions be- cause the incumbent must supervise managers who have either bachelor's or master's degrees. However, the petitioner has not es- tablished the proposed duties involve significant supervision or

三封大学信件合在一起，允许将相对广泛的专业领域作为制造副总裁职位的先决条件，而非某一特定专业或狭窄的专业范围。三封信中提到的专业是：（1）商业或工程；（2）机械工程、化学工程、纺织科学、纺织化学或工业管理；（3）纺织管理与技术。 一些纺织制造企业可能能够证明需要制造副总裁或其他至少拥有大学信件中提到的某一或多个领域学士水平学位的经理。在本案中，律师主张新的纱线制造技术要求受益人了解“长纤维系统”并理解现代机械的复杂性。律师还主张拟议职责涉及最近安装的计算机化系统的开发。 然而，记录并未具体证明拟议职责如何如此专业和复杂，以至于实际上需要受过大学教育的人。申请人也未证明受益人将亲自参与异常复杂的职责，例如培训、排除复杂设备或系统故障，或谈判复杂的合同，从而使专业知识和背景几乎不可或缺。 拟议职位直接向总裁汇报，是公司的最高制造职位。根据申请人的组织结构图，有几位经理向该职位汇报。拟议职位的职责似乎与副总裁通常履行的一般职责没有实质性差异，如上所述，这些职责通常不被视为专业性工作。 申请人主张，拟议职位的上一任任职者拥有缅因海事学院（Maine Maritime Academy）的理学学士学位，并在纺织行业拥有丰富经验。正如主任所指出的，由于该学位与纺织行业无关，是该个人的经验使其有资格担任该职位。因此，该职位似乎可以由一位教育和培训不等同于专业领域学士学位的有经验的人成功履行。 律师主张，拟议职位属于专业职业，因为任职者必须监督拥有学士或硕士学位的经理。然而，申请人并未确立拟议职责涉及对专业雇员工作的重要监督或

quality review over the work of professional employees so as to make the holding of professional credentials mandatory. According to counsel, positions under the direct supervision of the vice-president of manufacturing are professional, including the chief industrial engineer, the production planning manager, and the corporate purchase manager. Counsel bases his conclusion that these three occupations are within the professions on the fact that they are classified as "professional and kindred" in the Dictionary of Occupational Titles (4th ed. 1977) ("DOT"). While industrial engineers are normally considered to be profes- sional, a reference in the DOT is not enough to establish the pro- fessional nature of an occupation. The Department of Labor occu- pational classification system and the DOT categorization of an oc- cupation as professional and kindred or as being within a profes- sional subject field are not directly related to consideration as to whether a position requires a member of the professions as defined in section 101(aX32) of the Act. Citing Matter of Sun, 12 I&N Dec. 535 (D.D. 1966), counsel as- serts that the proposed position is classifiable as professional based on the complexity of its duties and its level of responsibility. Coun- sel states that in Matter of Sun the Service "held that the vocation of hotel manager is a profession based on the complexity of the duties involved, not the existence of a degree." This interpretation, however, takes the conclusion in Sun out of context. Matter of Sun, supra, clearly notes the requirement for profes- sional standing of "training gained only by an extended course of specialized instruction and study of at• least the baccalaureate level." Id. at 536. Although it concludes that the vocation of hotel manager in its more complex form involving certain duties for a large hotel may be considered a profession, it also concludes that "the beneficiary, by virtue of his specialized high-level education in the field of hotel management and his experience in that field is qualified as a member of that profession." Id. Matter of Sun is dis- tinguishable from this case because the petitioner here has not demonstrated a specific academic degree is required to perform the proposed occupation. Finally, counsel also cites Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F. Supp. 712 (N.D. Cal. 1988), in support of his assertion that the proposed position is classifiable as professional based on the complexity of its duties and its level of responsibility. As the Service does not consider itself bound by this decision outside of the Northern District of California, it is not necessary to examine the impact of that decision on this case.

质量审查，从而使持有专业资格证书成为强制性要求。 据律师称，制造副总裁直接监督下的职位属于专业职业，包括首席工业工程师、生产计划经理和公司采购经理。律师得出这三种职业属于专业职业的结论，依据是它们在《职业名称词典》（Dictionary of Occupational Titles）（第4版，1977年）（“DOT”）中被归类为“专业及相关”职业。 虽然工业工程师通常被视为专业人员，但DOT中的提及不足以确立某一职业的专业性质。劳工部职业分类系统以及DOT将某一职业归类为专业及相关职业或属于某一专业学科领域，与判断某一职位是否要求该法第101(aX32)条所定义的专业人员成员并无直接关系。 律师援引Matter of Sun, 12 I&N Dec. 535 (D.D. 1966)，主张拟议职位基于其职责的复杂性和责任级别可归类为专业职业。律师称，在Matter of Sun案中，本局“裁定酒店经理这一职业属于专业职业，依据的是所涉职责的复杂性，而非学位是否存在。”然而，这种解释将Sun案的结论断章取义。 Matter of Sun, supra案明确指出了专业地位的要求，即“仅通过至少学士水平的扩展专业教学和学习获得的培训。”Id. at 536。尽管该案得出结论，认为酒店经理这一职业在其更复杂的形式下（涉及大型酒店的某些职责）可被视为专业职业，但它也得出结论，“受益人凭借其在酒店管理领域的专业高层次教育及该领域的经验，有资格成为该专业人员。”Id. Matter of Sun案与本案有区别，因为本案申请人未证明履行拟议职业需要特定学位。 最后，律师还援引Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F. Supp. 712 (N.D. Cal. 1988)，以支持其主张，即拟议职位基于其职责的复杂性和责任级别可归类为专业职业。由于本局认为在加利福尼亚北区以外不受该判决约束，因此无需审查该判决对本案的影响。

Counsel argues the beneficiary is a rare person whose work expe- rience qualifies him as a member of the professions. Counsel as- serts the beneficiary's certificate in textile dyeing from City and Guilds of London Institute certifies him as a professional dyer, and he has performed services at a professioraal level for the past 8 years. It is noted the beneficiary has 24 years of work experience. It is also noted that, according to an evaluation of the beneficiary's for- eign education, he has the equivalent of a high school diploma in the United States plus completion of additional high school-level work and 5 semester hours of undergraduate credit. In several instances, this Service has recognized persons as mem- bers of the professions with less than the normally required aca- demic degrees. Matter of Yaakov, 18 MN Dec. 203 (R.C. 1969); Matter of Arjani, 12 I&N Dec. 649 (R.C.. 1967); Matter of Bien- kowski, 12 I&N Dec. 17 (D.D. 1966); Matter of Devnani, 11 I&N Dec. 800 (Acting D.D. 1066). The cited cases all share factors in common. In these cases, the beneficiaries had extensive formal academic edu- cation, as well as other professional attainments. While there are a number of colleges and universities in the United States which now give credit towards a degree based on ex- perience, none will grant a baccalaureate degree based on a per- son's experience alone. Organizations such as the Council for the Advancement of Experiential Learning and several universities in- dicate that the substitution of experience for college-level credit is generally based on evaluation of the applicant's research papers and an extensive portfolio by professors who teach that course or based on an examination. Several universities, however, have ad- vised that there is no one-to-one substitution of a certain number of years of experience for a certain amount of college credit. In Matter of Portugues Do Atlantico Information Bureau, Inc., supra, the Service reiterated the proposition that substantial aca- demic course work in a professional field combined with profession- al experience and achievement may be considered equivalent to a bachelor's degree. The Service rejected the concept that experience is necessarily the same as education or that it may be accepted on parity with academic preparation for the professions. A combination of education and experience may be considered equivalent to a professional degree, but usually only when a sub- stantial amount of specialized academic course work is combined

律师主张，受益人是一位罕见的人，其工作经验使其有资格成为专业人士。律师声称，受益人持有的伦敦城市与行会学院（City and Guilds of London Institute）纺织染色证书证明其为专业染色师，并且他在过去8年中一直以专业水平提供服务。 注意到受益人拥有24年工作经验。还注意到，根据对受益人外国教育的评估，其具有相当于美国高中文凭的学历，外加完成了额外的高中水平课程以及5个学期的本科课程学分。 在若干实例中，本局曾认可学历低于通常要求的学术学位的人士为专业人士。Matter of Yaakov, 18 MN Dec. 203 (R.C. 1969)；Matter of Arjani, 12 I&N Dec. 649 (R.C. 1967)；Matter of Bienkowski, 12 I&N Dec. 17 (D.D. 1966)；Matter of Devnani, 11 I&N Dec. 800 (Acting D.D. 1066)。所引案件均具有共同因素。在这些案件中，受益人均拥有广泛的正式学术教育以及其他专业成就。 虽然美国有许多学院和大学现在根据经验给予学位学分，但没有任何一所会仅凭个人经验授予学士学位。诸如经验学习促进委员会（Council for the Advancement of Experiential Learning）等组织以及若干大学表示，以经验替代大学水平学分通常基于教授该课程的教授对申请人研究论文和大量作品集的评估，或基于考试。然而，若干大学已告知，一定年限的经验并不与一定数量的大学学分一一对应替代。 在Matter of Portugues Do Atlantico Information Bureau, Inc.，同上，本局重申了以下主张：专业领域的大量学术课程学习与专业经验和成就相结合，可被视为等同于学士学位。本局拒绝了经验必然等同于教育、或经验可与专业学术准备同等接受的概念。 教育和经验的组合可被视为等同于专业学位，但通常仅在大量专业学术课程学习与

with employment and training which are documented as conveying to the employee professional knowledge and competency. Normally, this competeney is further demonstrated by professional recogni- tion such as the employee's membership in professional organiza- tions or associations requiring minimum professional standards for admission as a member. Evidence of this nature has not been intro- duced into this proceeding. The beneficiary has not completed any apprenticeship. The only advanced education or training he has received is that resulting in his being awarded one certificate in dyeing for study at the commu- nity college level. The positions held by the beneficiary include assistant in a dis- patch department, dyer, and employee in a department for yarn spinning, twisting, and finishing. He subsequently became shift su- pervisor in this department, then department head, and ultimately factory manager. In 1980, he assumed the position of general man- ager of another company. In ass, he was promoted to the position of production director of that and a related company. The record shows the beneficiary has worked his way up to a prominent executive position, but much of his employment was in ordinary production work or first-line supervision of other workers. The record does not demonstrate the beneficiary's employment has conveyed to him the theoretical and practical application of special- ized knowledge required at the professional level of an occupation. The beneficiary is a member of three committees in the Confed- eration of British Wool Textiles Limited. As indicated later, the beneficiary's membership on these committees is one of the factors considered in making the determination that he is a preeminent business person, but it does not demonstrate he is a member of the professions. This is because the record does mot establish that this organization is a professional, as opposed to a trade, organization or that membership in this organization requires at least a specific academic degree or its equivalent.

有据可查的、向雇员传授专业知识和能力的就业和培训相结合时，才可如此认定。通常，这种能力还通过专业认可进一步证明，例如雇员加入要求具备最低专业标准方可入会的专业组织或协会。本案程序中未引入此类性质的证据。 受益人未完成任何学徒培训。其所接受的唯一高等教育或培训，是导致其获得社区学院水平染色学习证书的那项教育。 受益人担任过的职位包括调度部门助理、染色师以及纱线纺纱、加捻和整理部门的雇员。他随后成为该部门的轮班主管，然后成为部门负责人，最终成为工厂经理。1980年，他担任另一家公司的总经理。在ass年，他被提升为该及一家关联公司的生产总监。 记录显示，受益人一路晋升至显要的高管职位，但其大部分就业从事的是普通生产工作或对其他工人的一线监督。记录未证明受益人的就业向其传授了某一职业专业水平所要求的专业知识的理论和实践应用。 受益人是英国羊毛纺织品联合会有限公司（Confederation of British Wool Textiles Limited）三个委员会的成员。如下文所述，受益人在这些委员会的成员资格是认定其为杰出商业人士时所考虑的因素之一，但并不证明其为专业人士。这是因为记录未确立该组织是专业组织而非行业组织，也未确立加入该组织要求至少具备特定学术学位或其同等学历。

Counsel's assertion that the beneficiary is preeminent in the field of textile manufacturing is supported by the record. While the term "preeminence" was used for "H-1" classification in Matter of Shaw, supra, the term "prominent" was used in connection with distinguished merit and ability in the 1970 House Committee Report cited above. The terms "prominent" and "preeminent" are

律师关于受益人在纺织品制造领域具有杰出性的主张得到记录支持。虽然"杰出性"（preeminence）一词在Matter of Shaw，同上，中用于"H-1"类别，但"显赫"（prominent）一词在上文引用的1970年众议院委员会报告中与杰出功绩和能力相关联使用。"显赫"和"杰出性"这两个词

now used interchangeably to describe aliens of distinguished_ merit and ability. Preeminence requires the showing of "paramount rank, dignity, or performance." Webster's Ninth New Collegiate Dictionary (Mer- riam-Webster 1986). Matter of Shaw, supra, which relates to an en- tertainer, contains criteria by which a beneficiary's distinguished merit and ability may be measured. This status may be evaluated through critical reviews, contractual arrangements, and/or remu- neration. Some of the criteria for determining whether a business person is preeminent in his or her field may, of necessity, be somewhat different from those for an entertainer. In order to establish a person has preeminence in business, a petitioner must demonstrate that the person has skills and recognition in business substantially above that ordinarily encountered. See Matter of Shaw, supra. Con- versely, not every person who owns or manages a business or holds a high position in a business is considered preeminent. Moreover, as pointed out in Shaw, the burden of proof to establish eligibility for "H-1" classification on preeminence grounds is upon the peti- tioner. There have not been any prior Service precedent decisions for- mally recognizing preeminent business persons. Nonetheless, there is nothing in law, regulation, or precedent decisions to preclude ap- proval of "H-1" petitions for persons who are preeminent in busi- ness. During the beneficiary's 24 years of work experience in the field of yarn manufacturing in the textile industry, he has worked his way up to a top production management position with a major tex- tile manufacturer where his responsibilities include the manage- ment and control of five production units and two plants. The bene- ficiary also has a significant record of unusual achievement in tex- tile manufacturing. For example, the beneficiary is a long-standing member of three of the most important committees in the Confederation of British Wool Textiles Limited, namely the Training Counsel, the Quality Management Steering Committee, and the Fibre, Textile, and Clothing Industries Fire Safety Committee. Additionally, several of the beneficiary's peers in the textile industry (one of whom is the Secretary of the Textile Institute) have attested to his preeminence in his field. The record documents that these individuals are "men of distinction and StuLure within the industry" whose voices are "heard within the major textile groups in the UK . . . and within the major textile educational establishments, such as the 'Textile Institute!'

现在可互换使用，用以描述具有杰出功绩和能力的外国人。 杰出性要求表明"最高级别的地位、尊严或表现"。Webster's Ninth New Collegiate Dictionary (Merriam-Webster 1986)。Matter of Shaw，同上，涉及一名演艺人员，其中载有衡量受益人杰出功绩和能力的标准。该身份可通过评论、合同安排和/或报酬来评估。 确定商业人士在其领域是否杰出的某些标准，必然可能与演艺人员的标准有所不同。为确立某人在商业上具有杰出性，申请人必须证明该人在商业上拥有并获得的认可远高于通常所遇水平。见Matter of Shaw，同上。反之，并非每一个拥有或管理企业或在企业中担任高级职位的人都被视为杰出。此外，正如Shaw案所指出的，以杰出性为由确立"H-1"类别资格的责任在申请人。 此前没有任何本局先例决定正式认可杰出商业人士。尽管如此，法律、法规或先例决定中没有任何内容排除批准在商业上杰出的人士的"H-1"申请。 在受益人在纺织行业纱线制造领域24年的工作经验中，他一路晋升至一家大型纺织品制造商的高级生产管理职位，其职责包括管理和控制五个生产单位和两个工厂。受益人还在纺织品制造方面拥有显著的不寻常成就记录。 例如，受益人是英国羊毛纺织品联合会有限公司三个最重要委员会的长期成员，即培训委员会、质量管理指导委员会以及纤维、纺织品和服装行业消防安全委员会。此外，受益人在纺织行业的若干同行（其中一位是纺织学会（Textile Institute）的秘书）已证明其在其领域的杰出性。记录证明这些个人是"行业内杰出且[StuLure]的人物"，其声音"在英国主要纺织集团内……以及在主要纺织教育机构内，如'纺织学会'，都能被听到"

According to the petitioner, the beneficiary "turned around a company facing a bankruptcy situation, until it is now the largest and most successful textile firm of its kind in Europe." The peti- tioner states the company for which the beneficiary is employed "was the one that most successfully weathered the storm of over- whelming imports from the Far East, and they did it primarily through the development of new technology." The petitioner also states the beneficiary "was the person responsible for this dramatic success." This information is corroborated by one of the beneficiary's peers, a managing director of another company, who states that the beneficiary was responsible for his employer's "outstanding in- crease in production and the highering of quality standards," and the beneficiary "has become pre-eminent in his field with the de- velopment of New Tee yarns." He also states that the beneficiary's employer "has become one of the U.K.'s leading producers of acryl- ic and wool spun yarns for . . . quality, service and fashion and much of the credit for this company's performance is due to .. . [the beneficiary's] work." The fact that a beneficiary is well known for achievements in his or her field is an important aspect of preeminence. It must be kept in mind that success or outstanding performance in business alone is not the same as preeminence. The beneficiary in this proceeding is well known in the textile industry. After an unsuccessful search in the United States, a Brit- ish recruitment consultant for textile firms throughout the world located the beneficiary. According to the consultant, "in no in- stance was there a candidate who had achieved the success" the beneficiarY had achieved. The consultant refers to the beneficiary's recognition by "colleagues, contemporaries and competitors," "the contribution he has made to the industry and the esteem with which others acknowledge his pre-eminence." The consultant as- serts further that the beneficiary "is pre-emin' ant within the indus- try and represents his company at senior levels whenever his capa- bilities are needed. His company is known throughout the industry, and . . . [the beneficiary] is known wherever worsted spinning is discussed." Not only is the beneficiary found to be a preeminent business person, but the proposed position of vice-president of manufactur- ing with this petition is found to be exceptional nature requiring preeminence in management of textile manufacturing. The record clearly demonstrates that the beneficiary, due to his uncommon ability in the management of textile manufacturing, now holds a

据申请人称，受益人"扭转了一家面临破产局面的公司，使其现已成为欧洲同类中最大、最成功的纺织企业。"申请人称，受益人受雇的公司"是最成功地经受住来自远东压倒性进口风暴的企业，而他们主要依靠开发新技术做到了这一点。"申请人还称，受益人"是这一戏剧性成功的功臣。" 此信息得到受益人的一位同行、另一家公司的董事总经理的佐证，他称受益人负责其雇主的"产量显著增长和质量标准的提高"，且受益人"凭借新Tee纱线的开发已在其领域成为杰出人物。"他还称，受益人的雇主"已成为英国领先的腈纶和羊毛纺纱生产商之一，在……质量、服务和时尚方面，而该公司业绩的很大一部分功劳应归于……[受益人]的工作。" 受益人因其在其领域的成就而广为人知，这是杰出性的一个重要方面。必须牢记，仅凭商业上的成功或卓越表现并不等同于杰出性。 本案程序中的受益人在纺织行业广为人知。在美国搜寻未果后，一位为全球纺织企业服务的英国招聘顾问找到了受益人。据该顾问称，"在任何情况下都没有候选人取得过"受益人所取得的成功。该顾问提到受益人得到"同事、同代人和竞争对手"的认可，"他对行业所作的贡献以及他人对其杰出性所承认的尊重。"该顾问进一步声称，受益人"在行业内是杰出的，并在需要其能力时代表其公司出席高层场合。他的公司闻名于整个行业，而……[受益人]在所有讨论精纺的地方都为人所知。" 不仅认定受益人为杰出商业人士，而且认定本申请所提议的制造副总裁职位具有特殊性质，要求具备纺织品制造管理方面的杰出性。记录清楚表明，受益人因其在纺织品制造管理方面的非凡能力，现担任

position abroad requiring preeminence, and he has been offered such a position in the United States. The petitioner, with gross annual sales of approximately $90 mil- lion, states that it is the largest manufacturer of yarns for con- sumer markets in the United States and a growing supplier of in- dustrial yarns. The proposed position, the petitioner's top manufac- turing position, is critical for the petitioner's successful perform- ance. The petitioner emphasizes its need for the beneficiary's un- usual expertise in order to compete effectively with other firms. The incumbent of the proposed position would be directly respon- sible for approximately 725 employees at the petitioner's largest fa- cility located in Rochelle, Illinois, as well as indirectly responsible for the rest of the petitioner's approximately 1,350 employees. Fur- ther, the salary of approximately $100,000 per year plus benefits valued at $52,000 offered the incumbent, considered in conjunction with the other factors, supports a finding that the proposed posi- tion requires a preeminent business person. ORDER: The appeal is sustained. The decision of the director is withdrawn, and the petition is approved.

需要卓越地位的海外职位，并且他已在美利坚合众国获得此类职位。申请人年销售总额约为90 million美元，称其是美利坚合众国面向消费市场的纱线最大制造商，并且是工业纱线不断增长的供应商。拟议职位是申请人的最高制造职位，对申请人成功履行至关重要。申请人强调其需要受益人的非同寻常专长，以便与其他公司有效竞争。拟议职位的任职者将直接负责申请人位于伊利诺伊州罗谢尔的最大设施中约725名员工，并间接负责申请人其余约1,350名员工。此外，向任职者提供的约为每年100,000美元的薪资加上价值52,000美元的福利，结合其他因素考虑，支持认定拟议职位需要一位卓越的商业人士。命令：上诉获准。主任的决定被撤回，申请获批。