dismissed H-1B Case: Food Service Management

MATTER OF U-T-A-C-, INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY4,2016 
PETITION: FORM 1-129, PETITION FORA NONIMMIGRANT WORKER 
The Petitioner. a restaurant, seeks to temporarily employ the Beneficiary as a "food service 
manager" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-18 
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 pet1t10n. The Director concluded that the 
Petitioner did not establish that the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
finding the evidence of record insufficient to establish that the proffered position qualifies as a 
specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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: 
(b)(6)
Matter of U-T-A-C-. 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). U.S. Citizenship and Immigration Services (USCIS) has 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. Chert<~{f; 484 F.3d 139, 147 (1st Cir. 2007) (describing ·•a degree 
requirement in a specific specialty'' as •·one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petitiOn, the Petitioner stated that the Beneficiary will serve as a •·food service 
manager." In the letter of support, the Petitioner provided the Beneficiary's job duties in the 
protlered position as follows (note: errors in the original text have not been changed): 1 
Coordinate food service activities of the restaurant, catering service and establishment of 40% 
food services at additional locations. 
Coordinate and run the daily food service operations of the restaurant to provide high 
quality service to the customers. Establish the necessary policies related for that service. 
Be involved in the expansion of business; ''take-out & delivery"', "catering"' (such as bar 
& bat mitzvahs. wedding showers, baby showers, graduations birthdays, anniversaries), 
"establishment of new locations"' (one in downtown , with other two in 
suburbs i.e. and ). Monitor receipts vs. sales records and deposits. Make 
sure regulations, laws, health and safety standards are obeyed. Handle variety of 
administrative assignments such as employee records, payroll, taxes. licenses and 
insurance etc. Utilize internet for research, marketing, hiring, training. and buying. 
Coordinate with the accountant , CPA and food consultants. 
1 The percentages of time listed in the table do not add up to I 00%. 
2 
Matter of U-T-A -C-. Inc 
Estimate food and beverage costs and purchases supplies. Prepare food service budgets 20% 
(actual and projected). Monitor and review food service budget. Conduct research to find 
reliable suppliers. Make cost analysis. Estimate food and beverage costs. Oversee the 
inventory. Be involved in financing terms & arrangements. Meet the representatives of 
restaurant supply companies. Order food items, supplies and equipment (some gross 
volumes, produce: $75,000/yr, meat: $50,000/yr, fish: $25,000/yr, dairy products, soup, 
beverage: $75,000/yr, paper products $30,000/yr, imported ethnic food: $30,000/yr, 
supplies: $40,000/yr, tea-coffee-soda: $25.000). Monitor deliveries. Inspect quality. 
Maintain purchasing records. 
Confer with food preparation and other personnel to plan menus for the various operations 15% 
and the policies to be followed by food service personnel. Be involved in menu planning 
& development in accordance with the cuisine and high end fine dining standards. 
Determine food-labor-overhead costs and menu pricing. Monitor food preparation 
procedures. Coordinate with the executive chef and food consultants 
Direct hiring and assignment of personnel. Hiring, training, and replacing the employees: I 0% 
establish standards for personnel performance and customer service. Monitor employee 
performance and training. Assign duties and schedule hours. Coordinate hiring & 
assignment of kitchen personnel with executive chef. make recruitment plans to meet 
employee needs in the near future (such as 4 managers and assistant managers, 4 chefs, 6 
cooking personnel, 10 dining room and counter service personnel) in parallel to 
company's growth plans (2 or 3 more locations in 5 years, catering, dinner expansion, 
Sunday brunches, take-out & delivery business). confer with top management and 
coordinate. 
Investigate and resolve food quality and service complaints. Ensure customers are 
satisfied. Handle customer relations properly and with high standards. Investigate and 
resolve customer complaints regarding food quality or service. Be a good communicator. 
Be flexible, respectful and show self-confidence. 
100% 
According to the Petitioner, the pos1t10n requires at least a bachelor's degree m food service 
management, hospitality management, or a related field. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below. we determine that the 
Petitioner has not demonstrated that the profiered position qualifies as a specialty occupation.
2 
Specifically, the record does not establish that the job duties require an educational background. or 
its equivalent, commensurate with a specialty occupation.3 
2 Although some aspects of the regulatory criteria may overlap, we will address each ofthe criteria individually. 
3 The Petitioner submitted documentation to support 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 
Matter ofU-T-A-C-, Inc 
A. First Criterion 
We first tum to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of 
Labor's (DOL's) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
duties and educational requirements of the wide variety of occupations that it addresses:-l 
On the labor condition application (LCA) submitted in support of the H-1 B petition. the Petitioner 
designated the proffered position under the occupational category .. Food Services Managers" 
corresponding to the Standard Occupational Classification code 11-9051, at a Level II wage.5 
We reviewed the chapter of the Handbook regarding the .. Food Service Managers" occupational 
category, including the section entitled .. How to Become a Food Service Manager." This section 
states, in pertinent part: ''Most applicants qualify with a high school diploma and several years of 
work experience in the food service industry as a cook, waiter or waitress, or counter attendant:' 6 It 
4 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 USC IS 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. 
5 The "Prevailing Wage Determination Policy Guidance·· issued by the DOL provides a description of the \vage levels. 
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. We will consider the Petitioner's 
classification of the proffered position at a Level II wage rate in our analysis of the position. DOL's wage-level 
guidance specifies that a Level II designation is reserved for positions involving only moderately complex tasks 
requiring limited judgment. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Polh:l· 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/NPWIIC 
Guidance_Revised_11_2009.pdf 
DOL guidance further states that a requirement for years of education and/or experience that are generally required as 
described in DOL's Occupational lnfonnation Network (O*NET) Job Zones would be an indication that a 'sage 
determination at Level II would be proper classification for a position. The occupational category "Food Services 
Managers," has been assigned an O*NET Job Zone 3, which groups it among occupations for which medium preparation 
is needed. More specifically, most occupation in this zone "require training in vocational schools. related on-the-job 
experience, or an associate's degree." See O*NET OnLine Help Center, at http://www.onetonline.org/help/online
1
zones, 
for a discussion of Job Zone 3. The designation of the proffered position at a Level II on the LCA suggests that the 
petitioner's academic and/or professional experience requirements for the proffered position would be equate to training 
in a vocational school, related on-the-job experience, or an associate's degree as stated for occupations designated as 
O*NET Job Zone 3. 
6 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed .. '"Food Service 
Managers,'' http://www.bls.gov/ooh/management/print/food-service-managers.htm (last visited Apr. 29, 2016 ). 
4 
(b)(6)
Matter o.fU-T-A-C-, Inc 
also states: "Although a bachelor's degree is not required, some postsecondary education IS 
increasingly preferred for many manager positions, especially at upscale restaurants.'' !d. 
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 proffered position. In fact. the 
Handbook specifically states that a bachelor's degree is not required, and that for most applicants, a 
high school diploma is sufficient for entry into the occupation. 
The Petitioner highlights the Handbook's statement regarding "upscale restaurants," and claims to be 
such an institution. As a threshold matter. the Petitioner has not submitted sutlicient evidence to 
establish that it is an '·upscale" restaurant. However, even assuming, arguendo, that the Petitioner is 
an ·•upscale" restaurant. the Handbook specifically states that a bachelor's degree is not required for 
these entities, but rather that some postsecondary education is increasingly preferred by such 
institutions. 7 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter from 
. In his letter, (1) describes the credentials that he asserts qualify him to 
opine upon the nature of the proffered position; (2) lists the duties proposed for the Beneficiary; and 
(3) states that these duties require at least a bachelor's degree in food service management, 
hospitality management, or its equivalent. We carefully evaluated assertions in 
support of the instant petition but, for the following reasons, determined his letter does not have 
significant weight in this matter. 
While provided a list of duties purportedly for the position, we must question the 
extent of knowledge of the position within the context ofthe Petitioner's particular 
operations. First, these job duties are not found in the Petitioner's descriptions of the protlered 
position. Second, they are also not consistent with the Petitioner's designation of the proffered 
position under the "Food Service Managers'' category.8 That is, they were copied in substantial part 
from DOL's Occupational Information Network (O*NET) OnLine Summary Report for "General 
and Operations Managers." For example, the stated duties of ''[e]stablish and implement 
departmental policies, goals, objectives, and procedures, conferring with board members, 
organization officials, and staff members as necessary," and "[p]lan and direct activities such as 
sales promotions, coordinating with other department heads as required," are virtually verbatim in 
the O*NET Online Report for "General and Operations Managers.'' 9 Moreover, these job duties are 
7 A preference is not an indication of a requirement. 
8 With respect to the LC A, DOL provides clear guidance for selecting the most relevant O*NET occupational code 
classification. The ··Prevailing Wage Determination Policy Guidance'' states that if the employer's job opportunity has 
worker requirements described in a combination of O*NET occupations, the determiner should default directly to the 
relevant occupational code for the highest paying occupation, which would be "General and Operations Managers:· 
Here. the Petitioner selected "Food Service Managers"; therefore, we must question the reliability of 
evaluation. 
9 See O*NET Online Details Report for ''General and Operations Managers,'' http://www.onetonline.org/link/details/ll-
1 021.00 (last visited Apr. 29, 20 16). 
5 
(b)(6)
Matter of U-T-A-C-. Inc 
not found in, and are beyond the scope of, the job duties described by DOL for ""Food Service 
Managers." 10 
Even assuming possessed expertise on the degree requirements for food service 
managers, his opinion letter does not substantiate his conclusions, such that we can conclude that the 
Petitioner has met its burden of proof. First. does not reference, cite. or discuss any 
studies, surveys, industry publications, authoritative publications, or other sources of empirical 
information which he may have consulted to complete his evaluation. Second, the record does not 
indicate whether was aware that, as indicated by the Level II wage on the LCA, the 
Petitioner considered the proffered position to be for an employee who is expected to perform 
moderately complex tasks that require limited exercise of judgment. 11 Rather. states 
that the Beneficiary will have a high-level of responsibilities and establish and implement 
departmental policies. The Petitioner has not demonstrated that possessed the 
requisite information to adequately assess the nature of the position and appropriately determine 
parallel positions based upon the job duties and level of responsibilities. 
For the reasons discussed, we find that opinion letter lends little probative value to the 
matter here. ·Matter ql Caron Int'l. 19 I&N Dec. 791, 795 (Comm 'r 1988) (The service is not 
required to accept or may give less weight to an advisory opinion when it is ''not in accord with 
other information or is in any way questionable.''). 
The Handbook does not indicate that there are any degree requirements for these jobs. Moreover, 
the Petitioner has not provided documentation from another probative source to substantiate its 
assertion regarding the minimum requirement for entry into this particular position. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: ''The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates common industry 
practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
10 See O*NET Online Details Report for "Food Service Managers," http://www.onetonline.org/link/details!I 1-9051.00 
(last visited Apr. 29, 20 16). 
11 Furthermore, we incorporate by reference our earlier discussion that the Petitioner's Level II designation suggests that 
training in a vocational school, related on-the-job experience, or an associate's degree is sufficient to perform the duties 
of the proffered position. 
6 
(b)(6)
Matter of U- T-A-C-, Inc 
To satisfy this first prong of the second criterion, the Petitioner must establish that the .. degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "'routinely employ 
and recruit only degreed individuals.'' See .%anti. 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source (including opinion letter), reports a 
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. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms 
or individuals in the Petitioner's industry attesting that such firms ·'routinely employ and recruit only 
de greed individuals .. , 
We reviewed the evidence submitted, however, 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 support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
Petitioner described the proffered position and its business operations.12 The Petitioner claimed in 
its letter of support that it has plans for expansion and upgrading its services. However. the 
Petitioner did not provide probative documentation to support its claim (e.g.. a business plan; 
documentation substantiating the expansion of physical facilities; plans to hire staff; evidence 
substantiating that the Petitioner intends to establish branch, subsidiary or affiliate offices; probative 
evidence substantiating investments or new revenue sources; or other documentation regarding 
development/expansion plans). 
I:! The Petitioner stated that it is an upscale/high-end restaurant in "close proximity'' to two other restaurants that were 
owned and operated by world renowned chefs. The Petitioner further claimed that these aspects of its business are 
relevant to the instant matter. 
Matter of U-T-A -C-. Inc 
In any case, a petition cannot be approved to meet potential business expansions. A petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition. See 8 C.F .R. § 1 03 .2(b )( 1 ). 
A visa petition may not be approved at a future date after the Petitioner or Beneficiary becomes 
eligible under a new set of facts. Matter <~f Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm 'r 
1978). The H-1B classification is not intended as a vehicle for employers to bring in temporary 
foreign workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. 63 Fed. Reg. 30419, 30419 - 30420 (June 4. 
1998).13 
In addition, the Petitioner has not sufliciently developed relative complexity or uniqueness as an 
aspect of the proffered position. Again, it appears that the Petitioner expects the Beneficiary to 
perfonn moderately complex tasks that require limited exercise of judgment (by its selection of a 
Level II wage on the LCA) compared to other positions within the same occupation.14 The 
description of the duties provided by the Petitioner does not specifically identify any tasks that are so 
complex or unique that only a specifically degreed individual could perform them and does not 
refute the Handbook's statement that a high school diploma and work experience or some post­
secondary education is sufficient. 
Accordingly, the Petitioner has not submitted sufficient evidence to satisfy the second altemative 
prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F .R. § 214.2(h)( 4 )(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
To merit approval of the petition under this criterion, however, the record must establish that a 
petitioner's imposition of a degree requirement is not a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of the position. While a petitioner may 
assert that a proffered position requires a specific degree. that statement alone without corroborating 
evidence cannot establish the position as a specialty occupation. Were USCIS limited solely to 
reviewing the 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 Petitioner 
created a token degree requirement, whereby all individuals employed in a particular position 
13 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. See, e.g, 63 Fed. 
Reg. 30419. 30419- 30420 (June 4, 1998). 
I-l Nevertheless, a low wage-designation does not preclude a proffered position from classification as a specialty 
occupation. just as a high wage-designation does not definitively establish such a classification. In certain occupations 
(e.g., doctors or lawyers), a Levell 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 docs not have an entry requirement of at least a bachelor's 
degree in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but 
is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
8 
(b)(6)
Matter of U-T-A-C-. Inc 
possessed a baccalaureate or higher degree in the specific specialty. or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. Evidence provided in support of this criterion may include. but is not 
limited to, documentation regarding the Petitioner's past recruiting and hiring practices. as well as 
information regarding employees who previously held the position. 
On the H-IB petition. the Petitioner indicated that it was established in (approximately 16 
years before the instant petition was filed). In the letter of support submitted with the petition. the 
Petitioner states that "there have been three individuals serving as the Food Service Manager": ( 1) 
the founder/president - who holds a degree in economics; (2) - who holds a degree in 
hospitality management; and (3) the Beneficiary. As a preliminary matter, the fact that the Petitioner 
would find acceptable individuals with degrees in disparate fields, such as economics and hospitality 
management for its food service manager position does not support its assertion that it requires an 
individual with a bachelor's degree in a specific specialty, or the equivalent. 15 
Further, the Petitioner did not provide the duties of these individual, thus, it is not possible to 
determine important aspects of the jobs, such as the day-to-day responsibilities, complexity of the 
job duties, supervisory duties (if any). independent judgment required or the amount of supervision 
received. That is. the record indicates that one of the individuals was the Petitioner's owner/founder 
who, the Petitioner states ''wore many hats." The other individual was approved for E-2 
classification (treaty trader), which is for an individual (1) who has invested a substantial amount of 
capital in a U.S. business; (2) is seeking to enter the United States to develop and direct the 
investment enterprise; (3) is serving in an executive or supervisory position (primarily providing 
ultimate control and responsibility for the organization's overall operation. or a major component of 
it). The documentation does not establish that the duties and responsibilities of these positions are 
the same or parallel to the proffered position. 
Thus. without more. the Petitioner's assertion regarding these individuals does not constitute 
sufficient evidence of the Petitioner's recruiting and hiring history necessary for analysis under this 
criterion.16 Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
15 There must be a close correlation between the required '"body of highly specialized knowledge" and the proffered 
position. Therefore, a minimum entry requirement of degrees in disparate fields. such as economics and hospitality 
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. Section 214( i)( I )(B) of the Act (emphasis added). The Petitioner has not done so here. 
16 
See general~v Earl Babbie, The Practice qlSocial Research 186-228 (7th ed. 1995). 
9 
Matter of U-T-A-C-. Inc 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner claims that the nature of the specific duties of the position in the context of its 
business operations 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. However, relative specialization and complexity have not been sufficiently developed 
by the Petitioner as an aspect of the proffered position. That is. the proposed duties have not been 
described with sufficient specificity to establish that they are more specialized and complex than 
other positions in the occupational category that are not usually associated with at least a bachelor's 
degree in a specific specialty, or its equivalent. We reiterate our earlier comments and findings 
regarding the insufficiency of evidence of the Petitioner's claimed "upscale'' operations and the 
implications of the position's Level II wage designation on the LCA. 
In addition, the Petitioner claims that the Beneficiary is well qualified for the position, and 
references her qualifications. However, the test to establish a position as a specialty occupation is 
not the education or experience of a proposed beneficiary, but whether the position itself requires at 
least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner has not 
demonstrated in the record that its proffered position is one with duties sufficiently specialized and 
complex to satisfy 8 C.P.R.§ 214.2(h)(4)(iii)(A)(I). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A). it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 17 The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act 8 U.S.C. 
§ 1361: Matter l~j'Otiende, 26 I&N Dec. 127. 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-T-A-C-. Inc, ID# 16291 (AAO May 4, 2016) 
17 
We will not address the Beneficiary's qualifications as a beneficiary's credentials to perform a particular job are 
relevant only when the job is found to be a specialty occupation. 
10