dismissed H-1B Case: Food Service Management

(b)(6)
DATE: 
IN RE: 
PETITION: 
JUL 1 0 2015 PETITION RECEIPT#: 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Oflice 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section I 0 I (a)( IS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § II Ol(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. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I -129), the petitioner describes itself as an 
18-employee "Donut and Ice Cream Shops" firm established in In order to continue to 
employ the beneficiary what it designates as a "General and Operations Manager" position, 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)(l5)(H)(i)(b). 
The Director denied the petition, finding that the evidence of record did not establish that the 
petitioner 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 the 
petitioner satisfied all evidentiary requirements. 
The record of proceeding includes: (1) the petitioner's Form I-129 and the supporting 
documentation; (2) the service center's RFE; (3) the petitioner's response to the RFE; ( 4) the 
Director's denial letter; and (5) the Notice of Appeal or Motion (Form I-290B) and the petitioner's 
submissions on appeal. We reviewed the record in its entirety before issuing our decision. 
1 
As will be discussed below, we have determined that the Director did not err in her decision to deny 
the petition on the specialty occupation issue. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
II. THE PROFFERED POSITION 
The petitioner identified the proffered position as a "General and Operations Manager" on the Form 
I-129, and attested on the required Labor Condition Application (LCA) that the occupational 
classification for the position is "General and Operations Managers," SOC (ONET/OES) Code 
11-1021, at a Level I wage. 
In the petitioner's letter in support of the petition, dated July 14, 2014, the petitioner stated that it "is 
a franchisee of " The petitioner also stated that it seeks to retain the 
beneficiary for an additional three years in the position of General and Operations Manager and that 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Also, in light of the petitioner's references, on appeal, to the requirement that U.S. Citizenship and 
Immigration Services (USCIS) apply the "preponderance of the evidence" standard, we affirm that, in the 
exercise of our appellate review in this matter, as in all matters that come within our purview, we follow the 
preponderance of the evidence standard as specified in the controlling precedent decision, Matter (~f 
Chawathe, 25 I&N Dec. 369,375-376 (AAO 2010). 
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the beneficiary's "primary duties will continue [to] be oversight of daily operations of the stores and 
the performance ofthe staff members." The petitioner added: 
[The beneficiary] is responsible for accuracy of business records and care of 
administrative activities of the restaurant which includes payroll and budgeting, as 
well as, compliance with licensing and payment of taxes. The [General and 
Operations Manager (GOM)] will conduct regular meetings with all the managers of 
the stores regarding their activities and operations , including staffing , inventory, and 
finances, and make note of valuable suggestions from managers and regular 
customers. He will also plan and implement new strategies to attract customers to 
withstand the competition from other competitors and tackle critical situations 
carefully. In doing so, the GOM furthers the goals of the company and ensures our 
mission is attained. 
The petitioner provided a list of specific duties for the proffered position and allocated the time the 
beneficiary would spend performing the duties as follows: 
- 30%: Preparing financial budgets, and sales projections , analyses, and estimates; 
Establishing , monitoring and analyzing income and expense variances and 
maintaining financial controls; 
- 20%: Computing employees' time worked, production and commission. Compile 
and post employee wages, deductions and payroll data. Responsible for 
compliance with licensing, taxes, unemployment compensation and social 
security laws: 
15%: Responsible for determining staff requirements and personnel processes. 
Plan and review compensations and enforce policies and procedures; 
- 10%: Maintain operations by preparing policies and standard operating 
procedures implementing production , productivity, quality, and patron-service 
standards; determining and implementing system improvements ; 
- 10%: Developing and implementing marketing, advertising , public and 
community relations programs ; evaluating program results ; identifying and 
tracking changing demands ; 
- 10%: Attend management and certification trainings as required by 
-5%: Control purchases and inventory by meeting with store and account manager ; 
negotiat es prices and contracts; reviews and evaluates usage reports; analyzing 
variances ; taking corrective actions. 
[Verbatim.] 
III. SPECIALTY OCCUPATION 
The primary issue in this matter is whether the record establishe s that the proffered position 
qualifies as a specialty occupation. 
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A. Legal Framework 
To meet its burden of proof in this regard, the petitioner must establish that the employment it is 
offering to the beneficiary meets the following statutory and regulatory requirements. 
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) 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 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. 
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 
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language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart 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 of W-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 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. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement 
in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1 B 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 -1 B 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. USCIS 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. 
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NON-PRECEDENT DECISION 
B. Analysis 
A baccalaureate or higher degree in a spectfic specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). This criterion 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. We recognize the Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.2 Upon review of the Handbook, the 
occupation most closely related to the petitioner's proffered position of general and operations manager 
is in the subsection of the chapter on "Top Executives." The section of the Handbook on the duties of a 
Top Executive reports: 
Top executives devise strategies and policies to ensure that an organization meets its 
goals. They plan, direct, and coordinate operational activities of companies and 
organizations. 
Duties 
Top executives typically do the following: 
• Establish and carry out departmental or organizational goals, policies, and 
procedures 
• Direct and oversee an organization's financial and budgetary activities 
• Manage general activities related to making products and providing services 
• Consult with other executives, staff, and board members about general operations 
• Negotiate or approve contracts and agreements 
• Appoint department 
heads and managers 
• Analyze financial statements, sales reports, and other performance indicators 
• Identify places to cut costs and to improve performance, policies, and programs 
The responsibilities of top executives largely depend on an organization's size. For 
example, an owner or manager of a small organization, such as an independent retail 
store, often is responsible for purchasing, hiring, training, quality control, and 
day-to-day supervisory duties. In large organizations, however, top executives 
typically focus more on formulating policies and strategic planning, while general 
and operations managers direct day-to-day operations. 
2 All of our references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/OCO/. 
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This section also includes examples of types of top executives including a general and operations 
manager. The Handbook reports: 
General and operations managers oversee operations that are too diverse and 
general to be classified into one area of management or administration. 
Responsibilities may include formulating policies , managing daily operations, and 
planning the use of materials and human resources. They make staff schedules , 
assign work, and ensure that projects are completed. In some organizations, the 
tasks of chief executive officers may overlap with those of general and operations 
managers. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., Top 
Executives, http://www. bls.gov/ooh/management/top-executives.htm#tab-2 (last visited July 1, 
2015). 
Upon review of the petitioner's description of the duties of the proffered position, the nature of its 
business operations, and the assertions made on the LCA, the proffered position falls generally within 
this occupational category. We also reviewed the section of the Handbook, "How to Become a Top 
Executive," which describes the following preparation for the occupation, in pertinent part: 
Although education and training requirements vary widely by position and industry, 
many top executives have at least a bachelor's degree and a considerable amount of 
work experience . 
Education 
Many top executives have a bachelor's or master's degree in business administration 
or in an area related to their field of work. Top executives in the public sector often 
have a degree in business administration , public administration, law, or the liberal 
arts. Top executives of large corporations often have a master of business 
administration (MBA). College presidents and school superintendents typically have 
a doctoral degree in the field in which they originally taught or in education 
administration. 
Work Experience in a Related Occupation 
Many top executives advance within their own firm, moving up from lower level 
managerial or supervisory positions. However, other companies may prefer to hire 
qualified candidates from outside their organization. Top executives that are 
promoted from lower level positions may be able to substitute experience for 
education to move up in the company. For example, in industries such as retail trade 
or transportation , workers without a college degree may work their way up to higher 
levels within the company to become executives or general managers. 
(b)(6)
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NON-PRECEDENT DEC IS/ON 
Chief executives typically need extensive managerial experience. Executives are 
also expected to have experience in the organization's area of specialty. Most 
general and operations managers hired from outside an organization need lower level 
supervisory or management experience in a related field. 
Some general managers advance to higher level managerial or executive positions. 
Company training programs, executive development programs , and certification can 
often benefit managers or executives hoping to advance. Chief executive officers 
often become a member of the board of directors. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., Top 
Executives, http://www.bls.gov/ooh/management/top-executives.htm#tab-4 (last visited July 1, 
2015). 
The Handbook does not support the assertion that at least a bachelor's degree in a spec~fic .specialty , 
or its equivalent, is normally the minimum requirement for entry into a general and operations 
manager position. Rather, the Handbook reports that ''education and training requirements vary 
widely by position and industry," and although many top executives have at least a bachelor's 
degree the Handbook does not report that it must be in a specific specialty. Additionally, the 
Handbook recognizes that "in industries such as retail trade or transportation, workers without a 
college degree may work their way up to higher levels within the company." The Handbook 
emphasizes that top executives require a considerable amount of work experience and that most 
general and operations managers, if hired from outside an organization, need lower level 
supervisory or management experience in a related field. The Handbook does not conclude that 
normally the minimum requirement for entry into these positions is at least a bachelor's degree in a 
specific specialty, or its equivalent, but rather reports that there are a number of viable paths, in 
addition to a general bachelor's degree, to becoming a general and operations manager. 
Moreover, the Handbook's statement that "[m]any top executives have a bachelor's or master's 
degree in business administration" is inadequate to establish that the occupational category of top 
executives qualifies as a specialty occupation. To prove that a job requires the theoretical and 
practical application of a body of highly specialized knowledge as required by section 214(i)(l) of 
the Act, a petitioner must establish that the position requires the attainment of a bachelor's or higher 
degree in a specialized field of study or its equivalent. As discussed supra, USCIS interprets the 
degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is 
directly related to the proposed position. Although a general-purpose bachelor's degree, such as a 
degree in business administration, 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. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 
(1st Cir. 2007). Therefore, the Handbook's recognition that a general, non-specialty degree in 
business administration is also sufficient for entry into the occupation strongly suggests that a 
bachelor's degree in a spec~fic specialty is not normally the minimum requirement for entry into this 
occupation. 
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When reviewing the Handbook, it also must be noted that the petitioner designated the proffered 
position as a Level I (entry) position on the LCA. The wage levels are defined in DOL's "Prevailing 
Wage Determination Policy Guidance." A Level I wage rate is described 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 
routine 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 Level I 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/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
Thus, in designating the proffered position at a Level I wage, the petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage levels, 
this wage rate indicates that the beneficiary is only required to have a basic understanding of the 
occupation and carries expectations that the beneficiary perform routine tasks that require limited, if 
any, exercise of judgment; that he would be closely supervised; that his work would be closely 
monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. As noted above, according to DOL guidance, a statement that the job 
offer is for a research fellow, worker in training or an internship is indicative that a Level I wage 
should be considered. 
In certain instances, the Handbook is not determinative. When the Handbook does not support the 
proposition that a proffered position is one that meets the statutory and regulatory provisions of a 
specialty occupation, it is incumbent upon the petitioner to provide persuasive evidence that the 
proffered position more likely than not satisfies this or one of the other three criteria, 
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., documentation from other objective, 
authoritative sources) that supports a finding that the particular position in question qualifies as a 
specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position 
qualifies as a specialty occupation. 
The Handbook does not support the claim that the occupational category of top executives is one for 
which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
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specific specialty, or its equivalent. Even if it did (which it does not), the record lacks sufficient 
evidence to support a finding that the particular position proffered here, an entry-level general and 
operations manager position (as indicated on the LCA), would normally have such a minimum, 
specialty degree requirement or its equivalent. The duties and requirements of the position as 
described in the record of proceeding do not indicate that this particular position proffered by the 
petitioner is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, 
is normally the minimum requirement for entry. Thus, the petitioner has not satisfied the criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
·The requirement of a baccalaureate or higher degree in a spec{fic specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we find that 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 that are identifiable as being (1) in 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 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)). 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other reliable and authoritative source, indicates 
that there is a standard, minimum entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. Also, there are no submissions from professional associations in the 
petitioner's industry attesting that individuals employed in positions parallel to the proffered 
position are routinely required to have a minimum of a bachelor's degree in a specific specialty or 
its equivalent for entry into those positions. 
On appeal, the petitioner submits several job advertisements to demonstrate that positions similar to 
the proffered position require at least a bachelor of business administration degree to perform the 
duties of a general and operations manager. The advertisements submitted are from advertisers that 
range from sports bars to the to a nonprofit charitable organization. 
However, for the petitioner to establish that an organization is similar, it must demonstrate that it 
shares the same general characteristics with the advertising organization. 3 Without such evidence, 
3 The petitioner designated its business operations under the North American Industry Classification System 
(NAICS) code as 722211. This code was changed to 722513 identifying such business operations as 
"Limited-Service Restaurants," a U.S. industry comprising "establishments primarily engaged in providing 
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documentation submitted by a petitioner is generally outside the scope of consideration for this 
criterion, which encompasses only organizations that are similar to the petitioner. When 
determining whether the petitioner and the advet1ising 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 for the petitioner to claim 
that an organization is similar and in the same industry without providing a legitimate basis for such 
an assertion. While a few of the advertisements appear to include organizations that are in the same 
general industry as the petitioner, the petitioner has not submitted probative evidence, and the 
majority of the advertisements submitted do not include sufficient information, regarding the 
advertising organizations to establish that the advertising organizations are similar to the petitioner. 
Additionally, contrary to the purpose for which the advertisements were submitted, the postings do 
not establish that at least a bachelor's degree in a specific specialty, or its equivalent , is required for 
the positions. The majority of the advertisements list a requirement or preference for a bachelor's 
degree in business administration, a degree of general application. As observed above, a 
general-purpose degree (such as a degree in "business") may be a legitimate prerequisite for a 
particular position, however, 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. 
Chertofj; 484 F.3d 139, 147 (1st Cir. 2007).4 Since there must be a close correlation between the 
required specialized studies and the position, the requirement of a degree with a generalized title, 
such as business administration, without further specification, does not establish the position as a 
specialty occupation. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 558 (Comm'r 1988). Thus, 
advertisements that request a general-purpose degree are not probative to the issue of whether a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
food services (except snack and nonalcoholic beverage bars) where patrons generally order or select items 
and pay before eating. Food and drink may be consumed on premises, taken out, or delivered to the 
customer's location .. . . " U.S. Dep't ofCommerce , U.S. Census Bureau, 2012 NAICS Definition, 722513-
Limited-Service Restaurants , http ://\\'Ww.census.gov/cgi-bin/sssd/naics/naicsrch (last visited July I, 20 15). 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
[t]he cou1ts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1 B specialty occupation visa. See, e.g., Tapis lnl'l v. INS, 94 
F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of 
Michael Hertz Assocs. , 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited 
analysis in connection with a conceptually similar provision). This is as it should be: 
elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
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Further, the majority of the positions list a requirement of between two and ten years of experience 
in some sort of retail management. As previously noted, the petitioner has characterized the 
proffered position as a Level I, entry-level, position on the LCA. Again, DOL guidance states that 
Level I 
positions are appropriate for a worker-in-training or an individual performing an intemship. 5 
Thus, the job advertisements appear to be for positions that are more senior than the proffered 
position. Further, it must be noted that even if all of the job postings indicated that a bachelor's 
degree in a specific specialty is common to the industry in parallel positions among similar 
organizations (which they do not), the evidence of record does not demonstrate what statistically 
valid inferences, if any, can be drawn from the advertisements with regard to determining the 
common educational requirements for entry into parallel positions in similar organizations. 6 
Thus, the evidence of record, including the advertisements submitted for the first time on appeal, 
does not establish that a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent, is common to positions that are (1) in 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 
The evidence of record also does not satisfy the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), which provides that "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." A review of 
the record indicates that the evidence of record does not credibly demonstrate that the duties that 
5 For additional information regarding wage levels, 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/NPWHC _Guidance_ Revised _I I_ 2009 .pdf 
6 
Although the size of the relevant study population is unknown, the petitioner does not demonstrate what 
statistically valid inferences, if any, can be drawn from the job postings with regard to the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, 
The Practice of Social Research 186-228 ( 1995). Moreover, given that there is no indication that the 
advertisements were randomly selected, the validity of any such inferences could not be accurately 
determined even if the sampling unit were sufficiently large. See id. at 195-196 (explaining that "[r]andom 
selection is the key to [the] process [of probability sampling]" and that "random selection offers access to the 
body of probability theory, which provides the basis for estimates of population parameters and estimates of 
error"). 
As such, even if the job announcements supported the finding that the position requires a bachelor's or higher 
degree in a specific specialty or its equivalent, it cannot be found that such a limited number of postings that 
appear to have been consciously selected could credibly refute the findings of the Handbook published by the 
Bureau of Labor Statistics that such a position does not require at least a baccalaureate degree in a specific 
specialty for entry into the occupation in the United States. 
(b)(6)
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comprise the proffered position entail such complexity or uniqueness as to constitute a position so 
complex or unique that it can be performed only by a person with at least a bachelor's degree in a 
specific specialty. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner submitted various documents, including evidence regarding its business operations. 
However, the record of proceeding does not credibly demonstrate that the duties the beneficiary will 
be responsible for or perform on a day-to-day basis constitute a position so complex or unique that 
it can only be performed by a person with at least a bachelor's degree in a specific specialty, or its 
equivalent. While we acknowledge the petitioner's reference to a few related courses and recognize 
that these courses may be beneficial to the beneficiary when performing the 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. We note the petitioner's assertion on appeal that the beneficiary's 
responsibilities related to financial management and analysis "involves high-level oversight, review, 
analysis and preparation of complex financial data for three separate stores." However, the record 
lacks sufficiently detailed credible information to distinguish the proffered position as more 
complex or unique from other positions that can be performed by persons without at least a 
bachelor's degree in a specific specialty, or its equivalent. 7 
We also note the petitioner's emphasis on the beneficiary's educational preparation and its assertion 
that the majority of the courses he completed in the master's program at are 
directly related to the duties of the proffered position. The petitioner reiterates that only an 
individual with a correspondingly specialized post-secondary education in the particular field of 
Business Administration could effectively perform these duties. The petitioner, however, does not 
submit probative evidence establishing that the duties described require a post-secondary education 
or even a post-secondary education in business administration. The petitioner's conclusory 
statements are insufficient in this regard. 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) (citing Matter ofTreasure Craft ofCalifornia, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
7 This is further evidenced by the LCA submitted by the petitioner in support of the instant petition. More 
specifically, the LCA indicates a wage level at a Level I (entry) wage. The issue here is that the petitioner's 
designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, 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 occupations (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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Moreover, USCIS cannot determine if a particular job is a specialty occupation based on the 
qualifications of the beneficiary. A beneficiary's credentials to perform a particular job are relevant 
only when the job is first found to qualify as a specialty occupation. USCIS is required instead to 
follow long-standing legal standards and determine first, whether the proffered position qualifies as 
a specialty occupation, and second, whether an alien beneficiary was qualified for the position at the 
time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 I&N Dec. 
558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is 
found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). In this matter, the petitioner has not demonstrated that the position proffered here 
requires a precise and specific course of study that relates directly and closely to the position in 
question. Rather, the petitioner identifies several business courses the beneficiary has taken and 
asserts that these few courses establish the proffered position as a specialty occupation. However, 
again, since there must be a close correlation between the required specialized studies and the 
position, a few general business courses or even the requirement of a degree with a generalized title, 
such as business administration, without further specification, does not establish the position as a 
specialty occupation. C.f Matter of Michael Hertz Associates, 19 I&N Dec. 558 (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."). 
The record lacks sufficiently detailed information to distinguish the proffered position as unique 
from or more complex than positions that can be performed by persons without at least a bachelor's 
degree in a specific specialty, or its equivalent. As the evidence of record does not demonstrate 
how the proffered position is so complex or unique relative to other positions within the same 
occupational category that do not require at least a baccalaureate degree in a specific specialty or its 
equivalent for entry into the occupation in the United States, 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). 
The employer normally requires a baccalaureate or higher degree in a 
spec[fic specialty, or its equivalent, for the position 
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 
this end, USCIS reviews the petitioner's past recruiting and hiring practices, information regarding 
employees who previously held the position, as well as any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To satisfy this criterion, the record must establish that the specific performance requirements of the 
position generated the recruiting and hiring history. A petitioner's perfunctory declaration of a 
particular educational requirement will not mask the fact that the position is not a specialty 
occupation. USCIS must examine the actual employment requirements and, on the basis of that 
examination, determine whether the position qualifies as a specialty occupation. See generally 
Defensor v. Meissner, 201 F.3d 384. In this pursuit, the critical element is not the title of the 
position, or the fact that an employer has routinely insisted on certain educational standards, but 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
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)(l) of the Act. According to the Court in Defensor, "To interpret the regulations any 
other way would lead to an absurd result." Id. 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 alien 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. 
The petitioner here notes that it has not employed anyone in the proffered position, except the 
beneficiary. The petitioner asserts that the prior approval of its H-1 B petition for this beneficiary is 
evidence that USCIS has already recognized that it normally requires this degree for this particular 
position. The petitioner also references an April 23, 2004 memorandum authored by William R. 
Yates (hereinafter Yates memo) as establishing that USCIS must give deference to those prior 
approvals or provide detailed explanations why deference is not warranted. Memorandum from 
William R. Yates, Associate Director for Operations, The Sign~ficance of a Prior CIS Approval (~fa 
Nonimmigrant Petition in the Context qf a Subsequent Determination Regarding Eligibility for 
Extension qf Petition Validity, HQOPRD 72/11.3, (Apr. 23, 2004). The petitioner adds that the 
beneficiary's past performance was a direct result of his specialized and rigorous academic 
preparation and that his performance enhanced its profitability, reputation and returning customer 
rate. 
First, it must be noted that the Yates memo specifically states as follows: 
[A ]djudicators are not bound to approve subsequent petitions or applications seeking 
immigration benefits where eligibility has not been demonstrated, merely because of 
a prior approval which may have been erroneous. Matter qf Church Scientology 
International, 19 I&N 593, 597 (Comm. 1988). Each matter must be decided 
according to the evidence of record on a case-by-case basis. See 8 C.F.R. 
§ 103 .8( d). . . . Material error, changed circumstances, or new material information 
must be clearly articulated in the resulting request for evidence or decision denying 
the benefit sought, as appropriate. 
Thus, the Yates memo does not advise adjudicators to approve an extension petition when the facts 
of the record do not demonstrate eligibility for the benefit sought. On the contrary, the 
memorandum's language quoted immediately above acknowledges that a petition should not be 
approved, where, as here, the petitioner has not demonstrated that the petition should be granted. 
Again, as indicated in the Yates memo, we are not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g., Matter qf Church Scientology International, 19 l&N Dec. 593, 597 (Comm'r 
1988). If the previous nonimmigrant petition was approved based on the same description of duties 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
and assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the Director. It would be "absurd to suggest that [USCIS] or any agency 
must treat acknowledged errors as binding precedent." Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). A prior approval does not compel 
the approval of a subsequent petition or relieve the petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 
26, 1990). A prior approval also does not preclude USC IS from denying an extension of an original 
visa petition based on a reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (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. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Second, we recognize that the petitioner desires to obtain what it perceives to be a higher caliber 
employee, however, again the record, including a detailed description of the beneficiary's duties, 
must demonstrate that the 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 as the minimum for entry into the occupation, as required by 
the Act. The petitioner has not submitted sufficient probative evidence establishing this essential 
element. Moreover, we reiterate that the beneficiary's academic credentials do not establish that a 
position proffered is a specialty occupation. The petitioner has not satisfied the third criterion of 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The nature ofthe specffic 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 specific specialty, or its equivalent 
Finally, we will address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which is satisfied if the 
petitioner establishes that the nature of the specific duties is so specialized and complex that 
knowledge required to perform them is usually associated with the attainment of a baccalaureate or 
higher degree in a specific specialty or its equivalent. In the instant case, relative specialization and 
complexity have not been sufficiently developed by the petitioner as an aspect of the proffered 
position. We again refer to our earlier comments and findings with regard to the implication of the 
petitioner's designation of the proffered position in the LCA as a Level I (the lowest of four 
assignable levels) wage. That is, the Level I wage designation is indicative of a low, entry-level 
position relative to others within the occupational category, and hence one not likely distinguishable 
by relatively specialized and complex duties. Upon review of the totality of the record, the 
petitioner has not established that the nature of the specific duties is so specialized and complex that 
the knowledge required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
The evidence of record does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, 
therefore, it cannot be found that the proffered position qualifies for classification as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
IV. BENEFICIARY QUALIFICATIONS 
As set out above, 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. Further, since the specialty 
occupation basis for denial is dispositive of the petitioner's appeal, we need not address the 
beneficiary qualifications ground of ineligibility we observe in the record of 
proceeding. Nevertheless, we will briefly note and summarize it here with the hope and intention 
that, if the petitioner seeks again to employ the beneficiary as an H -1 B employee in the proffered 
position, it will submit sufficient independent objective evidence to address and overcome this 
additional ground in any future filing. 
The petitioner did not submit probative evidence that the petitioner's U.S. master's degree was 
issued by an accredited U.S. university. See 8 C.F.R. § 214.2(h)(4)(iii)(C)(l) (requiring that the 
United States baccalaureate or higher degree required by the specialty occupation is from an 
accredited college or university). In that regard, we observe that did not receive 
accreditation until 2014.8 The beneficiary's degree was issued in January 2010. The record does 
not include evidence that accreditation was retroactively applied. The record 
does not include documentary evidence of any other academic credentials issued to the beneficiary. 
Since evidence was not presented that the beneficiary has at least a U.S. bachelor's degree in a 
specific specialty, or its equivalent, the petition could not be approved even if eligibility for the 
benefit sought had been otherwise established. See 8 C.F.R. § 214.2(h)(4)(iii)(C). 
V. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition denied. 
8 is a graduate institution accredited by the Accrediting Council for Independent 
Colleges and Schools (ACICS) to award master's degrees. See http:/, ~ 
. (last visited July I, 20 15). The 
Accrediting Council for Independent Colleges and Schools is listed as a nationally recognized accrediting 
agency by the United States Department of Education and is recognized by the Council for Higher Education 
Accreditation. See http://www.acics.org/contact/content.aspx?id=2446 (last visited July I, 20 15). 
(b)(6)
NON-PRECEDENT DECISIO N 
Page 18 
In visa petition proceedings , it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOti ende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.