dismissed H-1B Case: Food Service

(b)(6)
DATE: 
INRE: 
PETITION: 
JUN 1 9 2015 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#.: 
Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § llOl(a)(IS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 1-2908) within 33 days of the date of this 
decision. The Form 1-2908 web page (www.uscis.gov/i-290b) contains the latest information on fee, 
filing location, and other requirements. Please do not mail any motions dit·ectly to the AAO. 
Thank you, 
Ron R senberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 
The matter is now on appeal before the Administrative Appeals Office (AAO). The appeal will 
be dismissed. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont 
Service Center on April 2, 2014. On the Form I-129, the petitioner describes itself as a food 
court/market with 19 employees, established in In order to employ the beneficiary in what 
it designates as a training and development specialist, the petitioner seeks to classify him as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, finding that the petitioner has not established that it would 
employ the beneficiary in a specialty occupation position. On appeal, the petitioner asserts that 
the director's basis for denial of the petition was erroneous and contends that it satisfied all 
evidentiary requirements. 
The record of proceeding contains: (1) the Form I-129 and supporting documentation; (2) the 
director's Request for Evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the director's 
notice of decision; and, (5) the Notice of Appeal or Motion (Form I-2908) and supporting 
documentation. We reviewed the record in 
its entirety before issuing our decision.
1 
. For the reasons that will be discussed below, we agree with the director's decision that the 
petitioner has not established eligibility for the benefit sought. Accordingly, the director's 
decision will not be disturbed. The appeal will be dismissed, and the petition will be denied. 
II. PROFFERED POSITION 
The petitioner indicated on the Form I-129 that it seeks the beneficiary's services as a training 
and development specialist to work on a part-time basis between 20-40 hours a week with a 
salary of $18,564.00 - $3 7,128 per year. 
In . a letter of support, the petitioner stated that the beneficiary will be responsible for the 
following duties: 
• Develop training programs to help employees maintain or improve job skills. 
• Develop training programs to help employees improve business English skills 
and communication skills. 
• Conduct safety trainings for new employees to prevent workplace 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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accident/injury. 
• Conduct business English/communication trainings for employees to improve 
organizational communication skills. 
• Plan and conduct new employee orientation to foster positive attitude toward 
organization objectives. 
• Design, plan, and organize employment law trainings/seminars for managers 
to prevent employment 
law problems. 
• Organize and develop training procedure manuals, guides, and course 
materials such as handouts and visual materials. 
• Present information, using a variety of instructional techniques and formats 
such as role playing, simulations, team exercises, group discussions, videos 
and lectures. 
• Assess training need through surveys, interviews with employees, or 
consultation with managers or customer representatives. 
• Monitor and evaluate training activities and program effectiveness. 
The petitioner also stated that the usual minimum requirement for the proffered position is a 
"bachelor's degree in human resources, education, communication, or a related field." 
In response to the RFE, the petitioner provided more information regarding some of the duties 
previously submitted as follows: 
• Develop training programs to help employees maintain or improve job skills: 
-Customer service training: Set the standard for legendary customer service. Make 
sure the customers are being taken care of and the store looks great at all times. 
Surprise and delight the customers with consistent, delightful service. Respond 
promptly to customer needs and questions and requests assistance when necessary. 
-Food safety and sanitation training: Make sure the employees follow food safety 
and sanitation guidelines. 
-Department-specific training: core job responsibilities and "how to". 
-Product knowledge training: our product categories, product use/preparation, taste-
testing. 
-Safety trainings: how to work safely and avoid workplace accident/injury. 
-Employment-related training: preventing workplace harassment, diversity in the 
workplace, etc. 
-Leadership training 
• Develop training programs to help employees improve business English skills and 
communication skills. 
-Communication 
training: the importance of good communication in the workplace 
(how to express opinions in a polite but assertive manners, how to respond 
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positively to individual differences, etc.) 
-Business English training: cross-cultural communications, basic English for 
customer services, etc. 
The petitioner also submitted a Labor Condition Application (LCA) in support of the instant H-
1 B petition. The LCA designation for the proffered position corresponds to the occupational 
classification of"Training and Development Specialists"- SOC (ONET/OES) Code 13-1151, at 
a Level I (entry-level) wage.3 
III. SPECIALTY OCCUPATION 
The issue here is whether the petitioner demonstrated by a preponderance of the evidence that it 
will employ the beneficiary in a specialty occupation position. 
A. The Law 
Section 214(i)(l) ofthe Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
3 On appeal, the petitioner submitted a new LCA certified after filing this petition. The petitioner states 
that its prior counsel made "mistakes tantamount to ineffective assistance of counsel," and the mistakes 
include "inaccurately presenting the position as part-time rather than full-time, and getting the 
beneficiary's proposed salary wrong." However, we note that the initial LCA was signed by the 
petitioner's signatory, "attest[ing] that the information and labor condition statements provided are true 
and accurate," and there is no evidence that the petitioner was not aware of the "mistakes" made on the 
LCA and other documents in the record of proceeding. We further note that in response to the RFE, the 
petitioner submitted an offer of employment letter that states the same salary and hours as noted in the 
initial LCA. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. § 
1 03 .2(b )( 1 ). The petitioner must establish that the position offered to the beneficiary when the petition 
was filed merits classification for the benefit sought. Matter of 1vfichelin Tire Corp., 17 I&N Dec. 248, 
249 (Reg. Comm'r 1978). On appeal, the petitioner cannot offer a new position to the beneficiary, or 
materially change a position's title, its level of authority within the organizational hierarchy, its associated 
job responsibilities, or the requirements of the position. Therefore, we will only review the LCA 
submitted with the Form 1-129. 
Moreover, 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports the H-1 B 
petition filed on behalf of the beneficiary; therefore, this regulation inherently necessitates the filing of an 
amended H-1 B petition to permit USCIS to perform its regulatory duty to ensure that the new LCA 
actually supports the H-1 B petition filed on behalf of the beneficiary. In addition, as 8 C.F.R. § 
I 03.2(b)(l) requires eligibility to be established at the time of filing, it is factually impossible for an LCA 
approved by DOL after the filing of an initial H-1 B petition to establish eligibility at the time the initial 
petition was filed. 
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(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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its 
equivalent, as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(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 ofthe specific· duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated vvith the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the 
statute as a whole. SeeK Afart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statute as a whole is 
preferred); see also COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 
U.S. 561 (1989); Matter ofW-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 
C.F .R. § 214.2(h)( 4)(iii)(A) should logically be read as being necessary but not necessarily 
sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise 
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Page 6 
interpret this section as stating the necessary and sufficient conditions for meeting the definition 
of specialty occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore 
be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory definitions of specialty occupation . 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. § 
214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered 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"). Applying this standard , USCIS regularly approves H-lB petitions for 
qualified aliens who are to be employed as engineers, computer scientists , certified public 
accountants, college professors, and other such occupations. These professions, for which 
petitioners have regularly been able to establish a minimum entry requirement in the United 
States of a baccalaureate or higher degree in a specific specialty or its equivalent directly related 
to the duties and responsibilities of the particular position, fairly represent the types of specialty 
occupations that Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation , USCIS does not simply 
rely on a position's title. The specific duties of the proffered position , combined with the nature 
of the petitioning entity's business operations, are factors to be considered. users must examine 
the ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the 
title of the position nor an employer's self-imposed standards, but whether 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 as the minimum for 
entry into the occupation, as required by the Act. 
B. Analysis 
To determine whether the proffered position qualifies as a specialty occupation , we now tum to 
the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A baccalaureate or higher degree in a specific 5pecialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
The criterion at 8 C.F .R. § 214.2(h)( 4 )(iii)(A)(J) 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. 
(b)(6)
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Page 7 
We recognize the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) as 
an authoritative source on the duties and educational requirements of the wide variety of 
occupations it addresses. 4 As noted above, the petitioner submitted an LCA in support of this 
position certified for a job offer falling within the "Training and Development Specialists" 
occupational category. 
We reviewed the chapter of the Handbook titled "Training and Development Specialists" 
including the sections regarding the typical duties and requirements for this occupational 
category. However, as will now be discussed, the Handbook does not indicate that at least a 
bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement 
for entry into this occupational group. 
The Handbook states the following regarding the educational requirements for training and 
development specialists: 
Training and development specialists need a bachelor's degree, and most need 
related work experience. 
Education 
Training and development specialists need a bachelor's degree. Specialists can 
come from a variety of education backgrounds, but many have a bachelor's 
degree in training and development, human resources, education, or instructional 
design. Others may have a degree in business or the social sciences, such as 
educational or organizational psychology. 
In addition, as technology continues to play a larger role in trammg and 
development, a growing number of organizations seek candidates who have a 
background in information technology or computer science. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
Training and Development Specialists, at http://www.bls.gov/ooh/business-and­
financial/training-and-development-specialists.htm#tab-4 (last visited on June 18, 20 15). 
The Handbook does not state that a baccalaureate or higher degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the occupation. While the 
Handbook states that training and development specialists need a bachelor's degree, it also states 
that "specialists can come from a variety of education backgrounds." The Handbook further 
states that "many have a bachelor's degree in training and development, human resources, 
education, or instructional design." It also states that " [ o ]thers may have a degree in business or 
the social sciences, such as educational or organizational psychology." The Handbook's 
4 
The Handbook, which is available in printed form, may also be accessed online at 
http://wwv-i.bls.gov/ooh. The references to the Handbook are from the 2014-15 edition available online. 
(b)(6)
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Page 8 
recognition that general, non-specialty "background" in various fields is sufficient for entry into 
the occupation suggests that a bachelor's degree in a spec(fic specialty is not normally the 
minimum entry requirement for this occupation . 
A petitioner must demonstrate that the proffered position requires a precise and specific course 
of study that relates directly to the position in question. See Royal Siam Corp. v . Chertojf, 484 
F.3d at 147. 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 Associates , 19 I&N Dec. 558 
(Comm'r 1988) (stating that "[t]he 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"). Thus, while a general-purpose degree or a degree in any discipline may be 
a legitimate prerequisit e 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. 
See Royal Siam Corp. v. Cherto,ff, 484 F.3d at 147. 
When, as here, the Handbook does not support the proposition that the proffered pos1t10n 
satisfies this first criterion of8 C.F.R. § 214.2(h)(4)(iii)(A), it is incumbent upon the petitioner to 
provide persuasive evidence that the proffered position otherwise satisfies the criterion, 
notwithstanding the absence of the Handbook's support on the issue. In such case, it is the 
petitioner's responsibility to provide probative evidence (e.g., documeutation from other 
authoritative sources) that supports a favorable finding with regard to this criterion. The 
regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B petition 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." 
In response to the RFE, the petitioner states that O*NET assigns the training and development 
specialist occupation a Job Zone Four rating. According to O*NET, "[m]ost of these 
occupations require a four-year bachelor's degree, but some do not." Notably, O*NET is not 
particularly useful in determining whether a baccalaureate degree in a specific specialty, or its 
equivalent, is a requirement for a given position , as O*NET's Job Zone designations make no 
mention of the specific field of study from which a degree must come. As was noted previously, 
we interpret 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 
proffered position. Thus, a designation of Job Zone Four does not demonstrate that at least a 
bachelor's degree in a specific specialty is normally the minimum requirement for entry, and does 
not, therefore, demonstrate that a position so designated qualifies as a specialty occupation as 
defined in section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
Upon review of the totality of the evidence in the entire record of proceeding, the petitioner has 
not established that the proffered position falls under an occupational category for which the 
Handbook, or other authoritative source, indicates that a requirement for at least a bachelor's 
degree in a specific specialty, or its equivalent, is normally required for entry into the occupation. 
(b)(6)
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Page 9 
Thus, the petitioner has not satisfied the first criterion of 8 C.F .R. § 214.2(h)( 4)(iii)(A). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, the petitiOner has not satisfied the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common 
for positions sharing all three characteristics of being (1) within the petitioner's industry, 
(2) parallel to the proffered position, and also (3) located in organizations that are similar to the 
petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and 
whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 
1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 
(S.D.N.Y. 1989)). 
Here and as already discussed, the petitioner has not established that its proffered position is one for 
which the Handbook reports an industry-wide requirement for at least a bachelor's degree in a 
specific specialty or its equivalent. Nor are there any submissions from a professional association in 
the petitioner's industry stating 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. 
In response to the RFE, the petitioner submitted a letter from a managing member of 
"a food court/market." He stated that 
the "size and scope of our company are similar to those of [the petitioner]." However, we note that 
that there is no evidence in the record to substantiate his claims. To establish that an organization 
is similar, it must demonstrate that the petitioner and the organization share the same general 
characteristics. Such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of 
revenue and staffing (to list just a few elements that may be considered). It is not sufficient to 
claim that an organization is similar and in the same industry without providing a legitimate 
basis for such an assertion. Thus, Mr. does not provide a sufficiently substantive and 
analytical basis for his opinion. 
Mr. also stated that he reviewed the job duties "described in the H-lB support letter of [the 
petitioner] for the Training and Development Specialist and I can confirm that the degree 
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Page 10 
requirement is common to the industry for the offered position." However, there is no indication 
that Mr. possesses any knowledge of the petitioner's proffered position and its business 
operations beyond the information provided by the beneficiary. Mr. does not demonstrate 
or assert in-depth knowledge of the petitioner's specific business operations or how the duties of 
the position would actually be performed in the context of the petitioner's business enterprise. 
Moreover, Mr. did not indicate that he visited the petitioner's business, observed the 
petitioner's employees, interviewed them about the nature of their work, or documented the 
knowledge that they apply on the job. 
Mr. also stated that "most employers require a bachelor's degree in HR, Education, or 
a closely 
related field for the Training and Development Specialist position." However, he did not reference 
any supporting authority or any empirical basis for the pronouncement. The letter lacks the 
requisite specificity and detail and his claims are not supported by independent, objective 
evidence demonstrating the manner in which he reached the conclusions stated in the letter. 
Further, there is no indication he has published any work or conducted any research or studies 
pertinent to the educational requirements for training and development specialist positions (or 
parallel positions) in the petitioner's industry for similar organizations, and no indication of 
recognition by professional organizations that he is an authority on those specific requirements. 
In summary, and for each and all of the reasons discussed above, we conclude that the opinion 
letter rendered by Mr. is not probative evidence to establish the proffered position as a 
specialty occupation. As such, his ultimate conclusions are not wmihy of any deference, and this 
opinion letter is not probative evidence towards satisfying any criterion of the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 7 For efficiency's sake, we hereby incorporate the above discussion and 
analysis regarding the opinion letter into each of the bases in this decision for dismissing the 
appeal. 
Thus, the petitioner has not satisfied the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), as the evidence of record does not establish that a requirement of a 
bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
sharing all three characteristics of being (1) within the petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the petitioner. 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
Next, the evidence of record does not satisfy the second alternative prong of 
7 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 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. Matter of Caron International, 19 I&N Dec. 
791 (Comm'r 1988). As a reasonable exercise of its discretion the we discount the advisory opinion letter 
as not probative of any criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
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Page II 
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. 
On appeal, the petitioner explained the important role of the beneficiary as follows: 
The food court business in has largely survived in an exclusively 
Korean-speaking business infrastructure. [The petitioner's] business plan is to 
develop a mainstream system within this business to grow a brand that offers a 
dining experience in outstanding retail locations in to discerning 
customers. In order to support this transition from a Korean-speaking work force 
to a broader mainstream employment base, while still retaining the business 
practices and culture that have contributed to the success of this industry, it is 
necessary to have training and development programs for our employees and new 
hires. We have signed three supermarket-sized retail locations and are about to 
sign an additional five in There is no other business with this 
scale in this unique marketplace , and [the beneficiary's] participation is 
quintessential to our business development. Without a proper and efficient team 
building and development system, which (the beneficiary] is spearheading, our 
growth model would be in jeopardy. 
The petitioner did not explain how the beneficiary will develop a training program to support the 
"transition from a Korean-speaking work force to a broader mainstream employment base." In 
addition, the petitioner stated that the beneficiary will have "one-on-one interaction with every 
employee below the manager level"; however, the petitioner did not explain who these 
employees are and what positions they will hold and how the beneficiary will provide training 
and development programs for these employees. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998). 
Further, the petitioner did not demonstrate how the duties of the proffered position as described 
in the record require the theoretical and practical application of a body of highly specialized 
knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, is 
required to perform them. For instance, 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 may believe are so complex and unique. While a 
few related courses may be beneficial, or even required, in performing certain duties of the 
position, the petitioner did not demonstrate 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. The description of the duties does not specifically 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. The record lacks sufficiently detailed information to distinguish the proffered 
position as more complex or unique from other positions that can be performed by persons 
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Page 12 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
Additionally, we find that both on its own terms and also in comparison with the three higher 
wage-levels that can be designated in an LCA, by the submission of an LCA certified for a wage­
level I, the petitioner effectively attests that the proposed duties are of relatively low complexity 
as compared to others within the same occupational category.8 This fact is materially 
inconsistent with the level of complexity required by this criterion .9 By virtue of this submission 
the petitioner effectively attested that the proffered position is a low-level , entry position relative 
to others within the occupation, and that, as clear by comparison with DOL's instructive 
comments about the next higher level (Level II), the proffered position did not even involve 
"moderately complex tasks that require limited judgment" (the level of complexity noted for the 
next higher wage-level , Level II). 
Consequently, as the petitioner did not demonstrate how the proffered position is so complex or 
unique relative to other training and development specialist positions that can be performed by a 
person without at least a baccalaureate degree in a specific specialty or its equivalent for entry 
into the occupation in the United States, the petitioner has not satisfied the second alternative 
8 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I 
wage rate is describes as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who 
have only a basic understanding of the occupation. These employees perform r~outine 
tasks that require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees 
may perform higher level work for training and developmental purposes . These 
employees work under close supervision and receive specific instructions on required 
tasks and results expected . Their work is closely monitored and reviewed for accuracy. 
Statements that the job offer is for a research fellow , a worker in training, or an internship 
are indicators that a Levell wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin ., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf!N PWHC _Guidance_ Revised _I I_ 2009 .pdf. 
9 The issue here is that the petitioner's designation of this position as a Level I, entry-level posrtron 
undermines its claim that the position is particularly complex, specialized , or unique compared to other 
positions within the same occupation. Nevertheless, it is important to note that a Level I wage­
designation. does not preclude a proffered position from classification as a specialty occupation. In certain 
occupation~ (doctors or lawyers, for example) , an 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 consideration but is not a substitute 
for a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
(b)(6)
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prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
We turn next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which requires the employer to 
demonstrate that it normally requires a bachelor's degree in a specific specialty or its equivalent 
for the position . We usually review the petitioner's past recruiting and hiring practices, as well 
as information regarding employees who previously held the position. 
To satisfy this criterion, the record must establish that a petitioner's imposition of a degree 
requirement is not merely a matter of preference for high-caliber candidates but is necessitated by 
the performance requirements of the proffered position. In the instant case, the record does not 
establish a prior history of recruiting and hiring for the proffered position only persons with at 
least a bachelor's degree in a specific specialty, or its equivalent. 
While a petitioner may believe or otherwise assert that a proffered position requires a specific 
degree, that opinion alone without corroborating evidence cannot establish the position as a 
specialty occupation. Were USCIS limited solely to reviewing a petitioner's claimed self­
imposed requirements , then any individual with a bachelor's degree could be brought to the 
United States to perform any occupation as long as the employer artificially created a token 
degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty or its equivalent. See Defen sor v. 
Meissner, 201 F. 3d at 387. In other words, if a petitioner's assertion of a particular degree 
requirement is not necessitated by the actual performance requirements of the proffered position, 
the position would not meet the statutory or regulatory definition of a specialty occupation . See 
§ 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). The 
petitioner did not provide evidence of its hiring history for the position of training and 
development specialist. The petitioner claimed that the employees of the management team all 
have obtained a bachelor's degree but it did not provide specific information regarding the 
proffered position itself. 
As the record of proceeding does not demonstrate that the petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) . 
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 in a spec?fic specialty, or its equivalent 
The evidence of record does not satisfy the criterion at 8 C .F.R. § 214.2(h)(4)(iii)(A)(4), which 
requires the petitioner to establish that the nature of the proffered position's duties is so specialized 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
and complex that the knowledge required to perform them is usually associated \Vith the attainment 
of a baccalaureate or higher degree in the specific specialty or its equivalent. 
The petitioner provided information regarding the proffered position and its business operations. 
While the evidence provides some insights into the petitioner's business activities, the documents 
do not establish that the nature of the specific duties of the proffered position 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. 
We hereby incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (out of 
four assignable wage-levels) relative to others within the occupational category, and hence one 
not likely distinguishable by relatively specialized and complex duties. Without further 
evidence, it is not credible that the petitioner's proffered position .is one with specialized and 
complex duties as such a position would likely be classified at a higher-level, such as a Level IV 
(fully competent) position, requiring a substantially higher prevailing wage. As previously 
discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires 
a significantly higher wage. The petitioner has submitted inadequate probative evidence to 
satisfy the criterion of the regulations at 8 C.P.R. § 214.2(h)(4)(iii)(A)(4). 
For all of these reasons, the evidence in the record of proceeding does not establish that the 
proposed duties meet the specialization and complexity threshold at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(4). 
IV. BENEFICIARY'S QUALIFICATIONS 
We do not need to examine the issue of the beneficiary's qualifications, because the petitioner 
has not provided sufficient evidence to demonstrate that the proffered position is a specialty 
occupation. In other words, the beneficiary's credentials to perform a particular job are relevant 
only when the job is found to be a specialty occupation. Therefore, we will not address the 
beneficiary's qualifications further. 
V. CONCLUSION AND ORDER 
In visa petltwn proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 10 
ORDER: The appeal is dismissed. 
10 As the identified grounds of ineligibility are dispositive of the petitioner's appeal, we need not address 
any additional issues in the record of proceeding