dismissed H-1B Case: Food Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-F-P-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a delicatessen and grocery business, seeks to extend the temporary employment of the 
Beneficiary as a part -time "quality assurance operations manager" under the H -1 B nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(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. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the Petitioner 
had not established the proffered position is a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner re-submits evidence and asserts that 
the Director erroneously concluded that it had not established that the proffered position is 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 minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
Matter of B-F-P-, Inc. 
(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.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" in the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a 
specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Cherto.ff, 
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, 387-88 (5th Cir. 2000). 
II. PROFFERED POSITION 
In response to the Director's request for evidence (RFE), the Petitioner repeated the initial 
description of duties of the proffered position and added the Beneficiary's time allocated to each of 
the duties as follows (bullet points added): 
• Check raw ingredients and finished products for safety and quality- 20% 
• Determine purchasing of products and supplies - 1 0% 
• Develop new food items and recipes for production based on consumer demand -
25% 
• Develop and improve methods of food preparation- 25% 
• Establish production schedules, use innovative cooking techniques and new 
equipment, direct preparation of regular, national food, including food for special 
occasions, test new products and demonstrate products to clients - 20% 
The Petitioner also provided a lengthy narrative describing each of the duties listed. In sum, the 
Petitioner claimed the proposed duties involved: ensuring that the meat and meat products are fresh; 
ensuring that the facility and staff comply with health regulations; working with vendors to 
determine the nutritional value of products as well as any potential allergens; verifying the 
temperature and weight of products; and developing new food items and new cooking procedures 
when necessary. 
2 
Matter of B-F-P-, Inc. 
To perform these duties the Petitioner initially asserted that the proffered position requires a person 
who possesses at least a bachelor's degree and later in the same letter added that the complexity of 
the offered position requires the services of an individual who possesses at least a bachelor's degree 
in zoology, biology, food management, or other related.fields.
1 
III. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, the record does not (1) describe 
the position's duties with sufficient detail; and (2) establish the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation? 
On the labor condition application (LCA)3 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Food Scientists and 
Technologists" corresponding to the Standard Occupational Classification code 19-1012.4 When 
determining whether a position is a specialty occupation, we must look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
particular employer. To ascertain the intent of a petitioner, we look to the Form l-129 and the 
documents filed in support of the petition. It is only in this manner that the exact position offered, 
the location of employment, the proffered wage, et cetera, can be determined. Pursuant to the 
regulations, the Director has the responsibility to consider all of the evidence submitted by a 
petitioner and such other evidence that he or she may independently require to assist in the 
adjudication. 8 C.P.R. § 214.2(h)(9)(i). Further, the regulations provide that "[a]n H-lB petition 
1 The Petitioner submits a copy of its advertisement for the proffered position which provides a similar position 
description and states that the position requires a bachelor's degree in food technology, or zoology/animal science. The 
record does not include evidence that the advertisement was published, other than the Petitioner's president certification 
that the advertisement was posted in the Petitioner's place of business for 14 days in August 20 I 5. 
2 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 
The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and ·qualifications who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-46 (AAO 20 15). 
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: (I) 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 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download/NPWHC_Guidance_Revised_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 of the Petitioner's job opportunity. !d. 
3 
Matter of B-F-P-, Inc. 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." 8 C.F.R. § 214.2(h)(4)(iv). 
The Petitioner stated on the Form 1-129 that it is a "Food Services, Deli, and Store" business 
established in 2007, and that the Beneficiary will be employed in a quality assurance operations 
manager position. 5 While the Petitioner paraphrases some of the duties listed in the Occupational 
Information Network (O*NET) Summary Reports, SOC 19-2012, as duties of the proffered position, 
the evidence of record does not support the Petitioner's claim that the actual proposed duties fall 
within the parameters of the food scientist and technologists occupation. The U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook's (Handbook) chapter on "Agricultural and Food 
Scientists" includes a sub-category for the occupation of "Food Scientists and Technologists which 
states:6 
Food scientists and technologists use chemistry, biology, and other sciences to study 
the basic elements of food. They analyze the nutritional content of food, discover 
new food sources, and research ways to make processed foods safe and healthy. Food 
technologists generally work in product development, applying findings from food 
science research to develop new or better ways of selecting, preserving, processing, 
packaging, and distributing food. Some food scientists use nanotechnology­
problem-solving techniques that work on an atomic scale-to develop sensors that 
can detect contaminants in food. Other food scientists enforce government· 
regulations, inspecting food-processing areas to ensure that they are sanitary and meet 
waste management standards. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Agricultural and Food Scientists," https://www.bls.gov/oohllife-physical-and-social­
science/agricultural-and-food-scientists.htm#tab-2 (last visited Feb. 17, 2017). 
Thus, the Handbook's description of this occupation indicates that it is a research occupation, not a 
quality assurance food manager in a delicatessen and grocery. We note for example, that the 
5 The Petitioner noted that the position "quality assurance and operations manager" is one of the titles listed under "Food 
Technologists" in the Occupational Information Network (O*NET) Summary Reports, SOC 19-1012.00. Upon review 
of the titles listed under this occupation, however, we find that O*NET lists the title "quality assurance manager" but not 
the title "quality assurance and operations manager." 
6 We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. All of our references are to the 2016-2017 edition of the Handbook, which may be 
accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive 
source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect 
in establishing the general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook 
on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the first 
criterion, however, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that 
its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 
Matter of B-F-P-, Inc. 
Beneficiary will spend the majority of his time ensuring that the meat, food products, and facility are 
safe and compliant with health regulations, developing new food items and recipes based on 
consumer demand, and auditing and verifying portion weight, product assembly, and troubleshooting 
product losses. 7 While these duties are important, the Petitioner has not adequately explained how 
they fall within the parameters of the occupation certified on the LCA. The Petitioner has not 
submitted sufficient detail to ascertain the nature of the proffered position and to determine that the 
duties described require the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. 
\ 
In this matter, the Petitioner has provided a generalized description of the Beneficiary's proposed 
duties which does not convey sufficient substantive information to establish the relative complexity, 
uniqueness and/or specialization of the proffered position or its duties within the context of the 
Petitioner's business operation. Accordingly, we are unable to discern the nature of the actual 
position and whether the tasks described entail the need for a particular level of education, or 
educational equivalency, in a body of highly specialized knowledge in a specific specialty. 
The Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion at 
8 C.P.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) 
the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the 
second alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation and the appeal must be dismissed on this basis alone. We will nevertheless 
perform a complete specialty occupation analysis under each of the four, alternative criteria at 
8 C.P.R. § 214.2(h)(4)(iii)(A). 8 
7 
The Petitioner has not adequately explained, for example how developing new food items and recipes within the 
context of its delicatessen and food service business is the same as or similar to developing new or better ways of 
selecting, preserving, processing, packaging, and distributing food, which when viewed in the context of the Handbook's 
report comports with a research position. 
8 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
5 
Matter of B-F-P-, Inc. 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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 turn to the Handbook to review the 
educational requirements for the occupation the Petitioner certified on the LCA. 
The Handbook reports that "[a]gricultural and food scientists need at least a bachelor's degree from 
an accredited postsecondary institution." Thus the Handbook indicates that a general bachelor's 
degree is sufficient to perform the duties of the occupation and does not report that the degree must 
be in a specific specialty. See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational 
Outlook Handbook, 2016-17 ed., "Agricultural and Food Scientists," https://www.bls.gov/ooh/life­
physical-and-social-science/agricultural-and-food-scientists.htm#tab-4 (last visited Feb. 17, 2017). 
A petitioner, however, must demonstrate that the proffered position requires a precise and specific 
course of study that relates directly and closely to the position in question. There must be a close 
correlation between the required specialized studies and the position; thus, the mere requirement of a 
degree, without further specification, does not establish the position as a specialty occupation. Cf. 
Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of 
a college degree for the sake of general education, or to obtain what an employer perceives to be a 
higher caliber employee, also does not establish eligibility."). Accordingly, while a general-purpose 
bachelor's degree may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam Corp. v. Cherto.ff, 484 F.3d at 147.9 
The Petitioner also referenced the O*NET Summary Reports for the occupation of "Food Scientists 
and Technologists," as demonstrating the proffered position is a specialty occupation. O*NET 
OnLine does not state a requirement for a bachelor's degree for this occupation. Rather, it assigns 
this occupation a Job Zone "Four" rating, which groups it among occupations for which "most ... 
require a four-year bachelor's degree, but some do not." O*NET OnLine Summary Report for 
"19-1012.00 - Food Scientists and Technologists," https://www.onetonline.org/link/summary/19-
1012.00 (last visited Feb. 17, 2017); O*NET OnLine Help Job Zones, 
http://www.onetonline.org/help/online/zones (last visited Feb. 17, 2017). Further, O*NET OnLine 
does not indicate that 4-year bachelor's degrees required by Job Zone Four occupations must be in a 
specific specialty directly related to the occupation. Therefore, O*NET OnLine information is not 
probative of the proffered position being a specialty occupation. 
9 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam, 484 F.3dat 147. 
6 
Matter of B-F-P-, Inc. 
The Petitioner points out that there are numerous universities that offer a bachelor's degree in food 
technology and claims that such a widely studied degree shows that a 4-year degree is normally the 
minimum requirement to enter into its position. However, the fact that a university offers a specific 
degree does not establish the requirements to enter into a position, rather it is the detailed description 
of the duties of the position that must demonstrate that a specific degree is required to perform them. 
As stated previously, the Petitioner has not established that the performance of the duties of the 
proffered position requires both the theoretical and practical application of a body of highly 
specialized knowledge and the attainment of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, as the minimum for entry into the occupation. See section 214(i)( 1) of the Act; 
8 C.F .R. § 214.2(h)( 4 )(ii) (defining the term "specialty occupation"). 
Furthermore, the Petitioner's claimed entry requirement for the proffered position of a bachelor's 
degree in zoology, biology, food management, animal science, or other related fields for the 
proffered position, without more, is inadequate to establish that the proposed position qualifies as a 
specialty occupation. In general, provided the specialties are closely related, e.g., chemistry and 
biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized 
as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 
214(i)( 1 )(B) of the Act. In such a case, the required "body of highly specialized knowledge" would 
essentially be the same. A minimum entry requirement of a degree in two disparate fields, such as 
zoology and food management would not meet the statutory requirement that the degree be "in the 
specific specialty (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. 10 
Section 214(i)(l)(B) ofthe Act (emphasis added). 
Absent evidence to the contrary, the fields of zoology, biology, food management, and all the animal 
sciences are not considered closely related specialties, and the Petitioner did not sufficiently 
establish how these fields are directly related to the duties and responsibilities of the proffered 
position. While these fields may share some basic courses, the Petitioner did not establish that the 
required "body of highly specialized knowledge" is essentially the same. Accordingly, as such 
evidence does not establish a minimum requirement of at least a bachelor's degree in a specific 
specialty, or its equivalent, for entry into the occupation, it does not support the proffered position as 
being a specialty occupation. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
10 In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so 
narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a 
minimum entry requirement, degrees in more than one closely related specialty. See section 214(i)( I )(B) of the Act; 
8 C.F.R. § 214.2(h)(1)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of 
record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
7 
Matter of B-F-P-, Inc. 
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.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
concentrates 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. 
When determining whether there is such a common degree requirement, factors often considered 
include: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999)(quotingHird/BlakerCorp. v. Sava. 712F. Supp.1095, 1102(S.D.N.Y.l989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative sources) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. Also, there are no submissions from 
the industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
The Petitioner submitted numerous advertisements to demonstrate that there is an industry standard 
for positions parallel to the Petitioner's proffered position. We note that many of the advertisements 
do not include meaningful descriptions of the positions advertised or rely on duties unlike the duties 
listed by the Petitioner. Additionally, the Petitioner asserts that the advertisers are competitors but 
does not submit evidence that the advertisers are similar to its organization. Specifically, the 
Petitioner asserts that a food technologist position may be situated in many different types of 
businesses and thus the nature of the industry is the activity involved and not the type of business. 
However, to establish that a degree requirement is common to the industry in parallel positions 
among similar organizations, the Petitioner must begin by offering an explanation and analysis of 
how its food service business is similar to the food service business in the advertisements. The 
Petitioner has not done so here. The Petitioner must support its assertions with relevant, probative, 
and credible evidence. See Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 201 0). 
8 
(b)(6)
Matter of B-F-P-, Inc. 
Moreover, the submitted advertisements establish at best that a bachelor's degree is generally 
required, but not a bachelor'.s degree in a specffic .specialty, or its equivalent. That is, the 
requirements to perform the positions advertised include a general bachelor's degree, and degrees as 
diverse as technology , cereal science, microbiology, engineering, to name a few. Thus, the 
advertisements confirm the Handbook's report that a degree of general applicability is acceptable to 
perform the duties of a food technologist or quality assurance manager and that there are many 
diverse fields that are acceptable depending upon the position. We also note that some of the 
advertisements require the successful candidate to have experience in addition to a bachelor's 
degree. As the Petitioner has designated the proffered position a Level I wage position on the LCA, 
a wage suitable for those individuals with only a basic understanding of the occupation, these 
advertisements appear to be for more advanced positions and thus also are not parallel to the 
proffered position. The advertisements submitted are not sufficient to establish an industry standard 
for positions parallel to the proffered position. 
We also reviewed the opinion letter prepared by Associate Professor of 
Sensory Analysis, Department of submitted in response 
to the Director's RFE and again on appeal. references three advertisements and 
concludes based on these advertisements that "[a]ll organizations seeking to employ a Quality 
Assurance and Operations Manager/Food Technologies require prospective candidates to possess at 
least a Bachelor's Degree in Food Science, Animal Science, Applied Sciences, or a related field." 
in the same opinion, also appears to acknowledge that the industry standard for the 
proffered position is a general bachelor's degree. Regardless of this inconsistency, it is not clear 
what statistically valid inferences, if any, can be drawn from just three job postings with regard to 
the common educational requirements for entry into such ositions. See generally Earl B.abbie, The 
Practice of Social Research 186-228 (7th ed. 1995). does not include the results of 
formal surveys, research, statistics, or any other objective quantifying information to substantiate his 
opinion regarding the industry standard for this occupation. Accordingly, we question the 
foundation of his opinion in this regard. 
As the record does not include probative evidence that a "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 , the Petitioner has not satisfied the first alternative 
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2) . 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In this matter, the evidence of record does not distinguish the proffered position as unique from or 
more complex than other food technologist positions that can be performed by persons without at 
9 
(b)(6)
Matter of B-F-P-, Inc. 
least a bachelor's degree in a specific specialty, or its equivalent. As determined above, the record 
does not credibly demonstrate exactly what the Beneficiary will do on a day-to-day basis such that 
complexity or uniqueness can even be determined. That is, the evidence of record does not establish 
that this position is significantly different from other food technologists/quality assurance manager 
positions such that it refutes the Handbook's information to the effect that there is a spectrum of 
degrees acceptable for such positions, including degrees in fields of general applicability. 
The Petitioner did not submit information relevant to a detailed course of study leading to a specialty 
degree and did not establish how such a curriculum is necessary to perform the duties it claims are so 
complex and unique. While a few related courses may be beneficial in performing certain duties of 
the position, the Petitioner has not demonstrated how an established curriculum of such courses 
leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to 
perform the duties of the proffered position. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition.'' 
Again, the LCA indicates that, relative to other positions located within the "Food Scientists and 
Technologists" occupational category, the Beneficiary would perform routine tasks that require only 
a basic understanding and require limited, if any, exercise of judgment. Without further evidence , 
the record does not demonstrate that the proffered position is complex or unique as such a position 
falling under this occupational category would likely be classified at a higher-level, such as a Level 
III (experienced) or Level IV (fully competent) position, requiring a significantly higher prevailing 
wage. 
We again reviewed opinion in which he paraphrases the Petitioner's description of 
job duties and opines that these "duties require candidates for the position to possess very advanced 
skills, especially job responsibilities related to food processing and preparation, which are typically 
taught in courses such as: Microbiology , Analytical Chemistry, Biochemistry, Technology & 
Mechanization, Dairy Work, and other related courses." does not, however, provide an 
analysis of these particular courses and how they specifically relate to the described duties. 
Moreover, while these courses may be helpful to an individual in this position there is insufficient 
evidence to conclude that this occupation requires a detailed course of study leading to a specific 
specialty degree. concludes that "the position of Quality Assurance and Operations 
Manager at the petitioning company is a specialty position, and the nature of the specific duties is so 
11 The issue here is that the Petitioner's designation of this position as a Level I 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)( I) of the Act. 
10 
(b)(6)
Matter of B-F-P- , Inc. 
specialized and complex that the knowledge required to perform these duties is usually associated 
with the attainment of a minimum of a Bachelor's degree in Food Science, Applied Science, 
Zoology, Agricultural Science, AnimaL Science, or a related field." However, does not 
explain how these broad fields of science are related, such that we can determine that these fields all 
include specific, cumulative courses that result in a specific degree. Nor did consider 
the fact that the Petitioner characterized the proffered position as requiring only a Level I wage, a 
wage requiring only a basic understanding of the occupation . Such a designation conflicts with 
characterization of the duties ofthe position as advanced. 
Upon review, opinion is not in accord with all the facts in the matter and we question 
the foundation of his opinion and his understanding of the Petitioner's own requirements and level of 
responsibility expected for the proffered position. We may, in our discretion, use opinion statements 
submitted by the Petitioner as advisory. Matter of Caron Jnt 'l, Inc., 19 I&N Dec. 791, 795 (Comm 'r 
1988). However, where an opinion is not in accord with other information or is in any \Vay 
questionable, we are not required to accept or may give less weight to that evidence. Id. 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his formal 
education and experience as evidence that the proffered position is a specialty occupation. 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. Here, the Petitioner did not sufficiently develop relative complexity or 
uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so 
complex or unique that only a specifically degreed individual could perform them. Thus, it cannot 
be concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The Petitioner references the Beneficiary's prior employment in this position and the employment of 
the individual in the position prior to the Beneficiary's employment. The individual who previously 
performed the duties of the proffered position possesses a foreign degree in information systems in 
management and now performs the duties of the Petitioner's head cook. The Petitioner's acceptance 
of an unrelated degree to perform the duties of the proffered position is an acknowledgement that the 
proffered position is not a specialty occupation. Cf Michael Hertz, 19 I&N Dec. at 560. 
Regarding the Beneficiary 's prior employment in this position, we note that we are not required to 
approve petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 597 (Comm'r 
1988). If the previous nonimmigrant petition was approved based on the same unsupported 
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 [U.S. Citizenship and Immigration Services 
(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 
II 
(b)(6)
Matter of B-F-P- , Inc. 
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.F.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&A1 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 nonimmigrant 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). 
We also note that a petitioner's perfunctory declaration of a particular educational requirement will 
not mask the fact that the position is not a specialty occupation. We must examine the actual 
employment requirements and, on the basis of that examination , determine whether the position 
qualifies as a specialty occupation. 12 See generally Defensor , 201 F.3d 387-88. The record here is 
insufficient to conclude that the Petitioner has satisfied the third criterion. 
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 asserts that the proffered position is specialized and complex and 
refers to 
opinion, as well as printouts detailing the food processing equipment used by the 
Petitioner in its business. We have again reviewed opinion and again find that his 
opinion does not appear to be based on any objective evidence, but instead, he restates the proffered 
position description as provided by the Petitioner. He does not indicate that he visited the 
Petitioner's business , or communicated within anyone as to 
the actual daily duties the Beneficiary 
would be required to perform. Again appears unaware that the Petitioner assigned a 
Level I wage to the proffered position , a wage-level which is appropriate for a comparatively low, 
entry-level food technologist position , relative to others within the same occupation. 
12 The critical element is not the title of the position, or the fact that an employer has routinely insisted on certain 
educational standards , but whether performance of the position actually requires the theoretical and practical application 
of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific 
specialty, or its equivalent, as the minimum for entry into the occupation as required by section 214(i)( 1) of the Act. 
According to the Court in Defensor, "To interpret the regulations any other way would lead to an absurd result." !d. at 
388. If USCIS were constrained to recognize a specialty occupation merely because the petitioner has an established 
practice of demanding certain educational requirements for the proffered position - and without consideration of how a 
beneficiary is to be specifically employed- then any beneficiary with a bachelor 's degree in a specific specialty could be 
brought into the United States to perform non-specialty occupations , so long as the employer required all such employees 
to have baccalaureate or higher degrees. See id. 
12 
Matter of B-F-P-, Inc. 
The printouts detailing the Petitioner's type of equipment do not establish that the operator of the 
equipment requires a bachelor's degree in a specific specialty. Although we understand that the 
Petitioner desires an employee who is competent to operate its ovens, fryers, and food processing 
and technical equipment, and is creative when developing new dishes, there is no evidence to 
support a finding that these duties require a bachelor's degree in a specific field. Upon review, the 
record does not include probative evidence that the duties as generally described require more than a 
basic proficiency in a food services field. Again relative specialization and complexity have not 
been sufficiently developed by the Petitioner as an aspect of the proffered position. In other words, 
the proposed duties have not been described with sufficient specificity to show that they are more 
specialized and complex than food service and operation managers positions that are not usually 
associated with at least a bachelor's degree in a specific specialty, or its equivalent. We also 
incorporate our earlier discussion and analysis regarding the duties of the proffered position, and the 
designation of the position in the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the same occupational category. The Petitioner has not 
demonstrated in the record that its proffered position is one with duties sufficiently specialized and 
complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
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. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-F-P-, Inc., ID# 205935 (AAO Feb. 28, 2017) 
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