dismissed H-1B Case: Food Service

(b)(6)
DATE: 
JUl 0 8 2015 
IN RE: Petition er: 
Benefic i
ary: 
PETlTION RECEIPT#: 
U.S. Dcpartm~. nt of Homeland Secu rity 
U.S. Ci tizenship and Immigra tio n Servic e~ 
Adm inistrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigr ation and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-preced ent decision of the Admini strative Appeals Offic e (AAO) fo r your case. 
If you believe we incorr ectly decided your case, you may file a motion reque sting 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 1-2908) within 33 days of the date of this 
decision. The Form I-290B web page (www .uscis.gov/i-29 0b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO . 
Thank you, 
Ron Rose nberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
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 a 
seven-employee "Restaurant/Market" firm established in In order to employ the beneficiary 
in what it designates as a "Food Service Manager Hospitality Consultant" position, the petitioner 
seeks to classify her 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 the evidence insufficient to establish: (1) that the proffered 
position qualifies for classification as a specialty occupation position; (2) that the beneficiary is 
qualified to work in a specialty occupation position; and (3) that the beneficiary has maintained her 
nonimmigrant status. On appeal, the petitioner asserts that the Director's bases for denial were 
erroneous and contends that the petitioner satisfied all evidentiary requirements. 
The record of proceeding before us contains: (1) the petitioner's Form I-129 and the supporting 
documentation filed with it; (2) the service center's request for additional evidence (RFE); (3) the 
petitioner's response to the RFE; ( 4) the Director's denial letter; and (5) the Form I-290B and the 
petitioner's other submissions on appeal. 1 We reviewed the record in its entirety before issuing our 
decision? 
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. 
II. THE PROFFERED POSITION 
The Labor Condition Application (LCA) submitted to support the visa petltwn states that the 
proffered position is a Food Service Manager position, and that it corresponds to Standard 
Occupational Classification (SOC) code and title 11-9051, Food Service Managers, from the 
Occupational Information Net\vork (O*NET). The LCA further states that the proffered position is 
a wage Level I, food service manager position. 
The petitioner stated the following in describing the proposed duties in the Form I -129 Supplement 
H: "Management/consulting from years of industry experience to assist with the development and 
growth of a new business." 
1 
The petitioner submitted documents with its appeal and in response to our notice dated April 17, 2015. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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In a letter dated Aprill, 2014, stated the following duties of the proffered position: 
Food, retail & beverage ordering, employee hiring, employee scheduling, employee 
training, catering & menu consulting with clients, daily menu planning in restaurant, 
organizing special events to promote business such as, food tastings and wine 
tastings, interaction with purveyors, food cost analysis and control, financial reporting 
to Ownership. 
A one-page document that appears to be a draft and part of a longer document states that the 
beneficiary will be responsible for the following: 3 
[E]stimating food and beverage costs, dealing with suppliers and arranging for 
delivery of inventory, planning and approving menus and setting prices. She is 
required to perform these tasks while ensuring that the daily upscale offerings are 
made in-house, fresh, to-order and that the budgeting and profitability are aligned. At 
the same time, the position requires the candidate to coordinate all aspects of food 
and beverage management with the special events planning and personal gourmet 
division. Duties can include filling the gourmet shopping orders, facilitating the 
purchasing and coordinating with the chef for the personally crafted and prepared 
meals, as well as large culinary and special events planning for charities, private 
parties, weddings, wine tastings and other special events. In this regard, [the 
beneficiary] may need to perform a variety of event planning duties in concert with 
the management of food and beverage and subordinate staff. 
For example she may need to help plan the scope of a special event (locations, food 
and beverage budgets,), inspect venues to ensure the services of [the petitioner] can 
be exercised to the requisite quality and standards, factor in party sizes to coordinate 
the timing and service of the culinary creations, coordinate the services for execution 
of the event (transportation of food, food service, etc.), instruct subordinate 
employees and coordinate schedules for on and off-site events, and ensure operational 
control at the facility while coordinating off-site events. 
In addition to the above, the position requires the direct supervision of staff, reporting 
to owners and fiscal management. [The beneficiary] is responsible for training, team 
management, hiring and dismissing employees, innovation and implementation of 
food service policy, overseeing customer service and ensuring that the business 
maintains its upscale character. 
3 "The services change daily, depending on the needs of the customers or type of event. Attached as Exhibit 
'M' you will find examples." is crossed out with blue ink. 
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Page 4 
[Verbatim.] 
The first sentence of this one-page document states that "luxury food service businesses to require a 
Bachelor's Degree in Management" and that "the particular position offered to [the beneficiary] is so 
unique that it can only be performed by an individual with a degree such as hers." 
III. SPECIALTY OCCUPATION 
We will first address the specialty occupation basis of denial. We find that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation in accordance with 
the applicable statutory and regulatory provisions. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) 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 mmtmum 
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; 
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(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)(1) 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 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-1B 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. 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 
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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 
A baccalaureate or higher degree in a specific specialty~ or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first discuss the record of proceeding in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which is satisfied if 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 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 
that it addresses. 4 The Handbook states the following with regard to the requirements of food 
service manager positions: 
How to Become a Food Service Manager 
Most applicants qualify with a high school diploma and long-term work experience in 
the food service industry as a cook, waiter or waitress, or counter attendant. However, 
some receive training at a community college, technical or vocational school, culinary 
school, or at a 4-year college. 
Education 
Although a bachelor's degree is not required, some postsecondary education is 
increasingly preferred for many manager positions, especially at upscale restaurants 
and hotels. Some food service companies and national or regional restaurant chains 
recruit management trainees from college hospitality or food service management 
programs, which require internships and real-life experience to graduate. 
Many colleges and universities offer bachelor's degree programs in restaurant and 
hospitality management or institutional food service management. In addition, 
numerous community and junior colleges, technical institutes, and other institutions 
offer programs in the field leading to an associate's degree. Some culinary schools 
offer programs in restaurant management with courses designed for those who want 
to start and run 
their own restaurant. 
4 
The Handbook, which is available in printed form, may also be accessed on the Internet, at 
http://www.bls.gov/oco/. Our references to the Handbook are to the 2014-2015 edition available online. 
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Regardless of length, nearly all programs provide instruction in nutrition, sanitation, 
and food planning and preparation, as well as courses in accounting, business law, 
and management. Some programs combine classroom and practical study with 
internships. 
Work Experience in a Related Occupation 
Most food service managers start working in industry-related jobs, such as cooks, 
waiters and waitresses, or dining room attendants. They often spend years working 
under the direction of an experienced worker, learning the necessary skills before 
they are promoted to manager positions. 
Training 
Managers who work for restaurant chains and food service management companies 
may undergo programs that combine classroom instruction and on-the-job training. 
Topics may include food preparation, nutrition, sanitation, security, company 
policies, personnel management, and recordkeeping. Some include training on the use 
of the restaurant's computer system. 
Licenses, Certifications, and Registrations 
Although not required, voluntary certification shows professional competence, 
particularly for managers who learned their skills on the job. The National Restaurant 
Association Educational Foundation awards the Foodservice Management 
Professional designation to managers who meet several criteria, including passing a 
written exam, completing coursework, and meeting experience requirements. 
Important Qualities 
Business skills. Food service managers, especially those who run their own 
restaurant, must understand all aspects of the restaurant business. They should know 
how to budget for supplies, set prices, and manage workers to ensure that the 
restaurant is profitable. 
Customer-service skills. Food service managers must be courteous and attentive 
when dealing with patrons. Satisfying customers' dining needs is critical for success 
and ensures customer loyalty. 
Detail oriented. Managers deal with many different types of activities. They interact 
with suppliers, workers, and customers; they make sure there is enough food to serve 
to customers; they take care of financial records; and they ensure health and food 
safety. 
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Leadership skills. Managers must establish good working relationships to ensure a 
productive work environment. This may involve motivating workers, resolving 
conflicts, or actively listening to complaints or criticism from customers. 
Organizational skills. Food service managers keep track of many different schedules, 
budgets, and people. This becomes more complex as the size of the restaurant or food 
service facility increases. 
Physical stamina. Food service managers, especially managers working in small 
establishments or those who run their own business, often work long hours and 
sometimes spend entire evenings on their feet helping to serve customers. 
Problem-solving skills. The ability to resolve personnel issues and customer-related 
problems is imperative to the work of managers. 
Speaking skills. Food service managers must give clear orders to staff and be able to 
explain information to employees and customers. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Food Service Managers," http://www.bls.gov/ooh/management/food-service-managers.htm#tab-4 
(last visited June 19, 2015). 
The Handbook makes clear that food service managers do not, as a category, require a minimum of 
a bachelor's degree or the equivalent, as it indicates that a high school diploma is sufficient for many 
positions. Further, even as to those food service manager positions that may require some post­
secondary education, the Handbook does not indicate that they require a bachelor's degree, nor that 
the post-secondary studies must be in any specific specialty. 
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. However, the record of proceeding does not contain sufficient 
persuasive documentary evidence from any other authoritative source to establish that a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position. 
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The Handbook does not support the claim that the occupational category of food service managers is 
one for which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
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 food service 
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 specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding 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: (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 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 (or other independent, authoritative source) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association, if any, 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 degreed 
individuals." 
The petitioner did provide vacancy announcements for positions entitled: Beverage Manager -
Operations, Restaurant Manager, Fresh Food Manager, Food and Beverage Director, Food & 
Beverage Manager III, and Catering Manager - Healthcare. The organizations that placed those 
announcements include the 
which was 
seeking to fill a position in a hospital. The petitioner has not sufficiently demonstrated that any of 
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the vacancies in those announcements are in the petitioner's industry and in organizations similar to 
the petitioner, and some are clearly not. 
Further, none of those vacancy announcements state a requirement of a minimum of a bachelor's 
degree in a specific specialty, or its equivalent. One states, "Position requires a Bachelor's Degree 
or an Associate's Degree," which makes clear an associate's degree would be an acceptable 
educational preparation for the position and that it does not, therefore, require a minimum of a 
bachelor's degree. 
One vacancy announcement states, "Associates or Bachelors Degree in related discipline preferred." 
[Emphasis added.] Another states, "Bachelor's Degree (BA) in Food & Beverage Management or 
related field preferred." [Emphasis added.] In addition to one of those vacancy announcements 
indicating that an associate's degree would be a sufficient educational qualification for the position it 
announces, both vacancy announcements only states a preference for a degree. A preference is not, 
of course, a minimum requirement. Another vacancy announcements states, "High School Diploma 
or equivalent preferred (additional coursework, training, or certification will be required.)" This 
vacancy announcement does not state a requirement of a minimum of a bachelor's degree in a 
specific specialty, or its equivalent. 
One vacancy announcement requires, a "Bachelor's degree (BA) from four-year college or 
university or equivalent experience." First, that vacancy announcement does not require a minimum 
of a bachelor's degree in a specific specialty or its equivalent. Further, it indicates that the hiring 
authority would accept some type and amount of experience as equivalent to a bachelor's degree, but 
without specifying what type or amount. 
Further still, the petitioner has designated the proffered position as a wage Level I position on the 
LCA, indicating that it is an entry-level position for an employee who has only basic understanding 
of the occupation. 5 Most of the vacancy announcements provided contain a requirement of 
experience in food service management. The positions they announce are therefore positions for 
experienced food service managers and have not, therefore, been shown to be positions parallel to 
the proffered position, a wage Level I, entry-level, position. 
Finally, even if all of the vacancy announcements were for parallel positions in the petitioner's 
industry, with organizations that are otherwise similar to the petitioner, and stated a requirement 
minimum of a bachelor's degree in a specific specialty or its equivalent, the evidence of record does 
not demonstrate what statistically valid inferences, if any, can be drawn from the vacancy 
5 
For an explanation of 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 _11_ 2009.pdf. 
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announcements provided with regard to the common educational requirements for entry into parallel 
positions in similar organizations. 6 
Thus, 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 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." The record does 
not credibly demonstrate exactly what the beneficiary will do on a day-to-day basis such that 
complexity or uniqueness can be determined. Furthermore, the record does not sufficiently develop 
relative complexity or uniqueness as an aspect of the proffered position of food service 
manager/hospitality consultant. 
Specifically, the evidence of record does not demonstrate how the duties that collectively constitute 
the proffered position 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 of the proffered position. While a few related courses 
may be beneficial, or even required, in performing certain duties of the proffered position, the 
evidence of record does 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 particular position here. 
Further, as was also noted above, the LCA submitted in support of the visa petition is approved for a 
wage Level I employee, an indication that the proffered position is an entry-level position for an 
r, US CIS "must examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be proven 
is probably true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). As just discussed, the evidence 
of record does not establish the relevance of the job advertisements submitted to the position proffered in this 
case. Even if their relevance had been established, the evidence of record still fails to demonstrate what 
inferences, if any, could be drawn from these few job postings with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations in the same industry. See 
generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
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employee who has only a basic understanding of the occupation. 7 This does not support the 
proposition that the proffered position is so complex or unique that it can only be performed by a 
person with a specific bachelor's degree, especially as the Handbook suggests that food servtce 
management positions typically do not require such a degree. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of educational qualifications acceptable for such positions, including high school 
diplomas, associate's degrees, and bachelor's degrees that are not in a specific specialty. In other 
words, 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 
specific specialty, or its equivalent, for the position 
We will next address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which may be satisfied if the 
petitioner demonstrates that it normally requires a minimum of a bachelor's degree in a specific 
specialty or its equivalent for the proffered position. 
In a letter dated April 1, 2014, the petitioner's owner, stated: "[The proffered] 
position was not previously occupied as the ownership was extremely active in order to launch the 
business." The record does not indicate that any of the petitioner's owners have degrees in a subject 
closely related to food service management. 
The third criterion of 8 C.P.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 
7 
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)(l) of the Act. 
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this end, we usually review the petitioner's past recrmtmg and hiring practices, as well as 
information regarding employees who previously held the position. 
A first-time hiring for a position is certainly not a basis for precluding a position from recognition as 
a specialty occupation. However, it is unclear how an employer that has never recruited and hired 
for the position would be able to satisfy the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which 
requires a demonstration that it normally requires at least a bachelor's degree in a specific specialty 
or its equivalent for the position. We cannot conclude that the petitioner has satisfied the third 
criterion of 8 C.P.R. § 214.2(h)( 4 )(iii)(A). 
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 petitioner 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 Defensor v. Meissner, 201 F.3d at 388. In other 
words, if a petitioner's stated degree requirement is only designed to artificially meet the standards 
for an H-lB visa and/or to underemploy an individual in a position for which he or she is 
overqualified and if the proffered position does not in fact require such a specialty degree or its 
equivalent to perform its duties, the occupation 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"). Here, the evidence of record does not establish the referenced criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(3) based on its normal hiring practices. 
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 specific specialty, or its equivalent 
Finally, the petitioner has not satisfied the fourth criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), which is 
reserved for positions with specific duties so specialized and complex that their performance 
requires knowledge that is usually associated with the attainment of a baccalaureate or higher degree 
in a specific specialty, or its equivalent. Again, relative specialization and complexity have not been 
sufficiently developed by the petitioner as an aspect of the proffered position. 
The duties of the proffered position contain insufficient indication of specialization and complexity 
that would require a specific bachelor's degree. Further, as was noted above, the petitioner filed the 
instant visa petition for a wage Level I food service manager position, a position for a beginning­
level employee with only a basic understanding of food service management. This does not support 
the proposition that the nature of the specific duties of the proffered position is so specialized and 
complex that their performance is usually associated with the attainment of a minimum of a 
bachelor's degree in a specific specialty or its equivalent, directly related to food service 
(b)(6)
NON-PRECEDENT DECIS/01\ 
Page 14 
management, especially as the Handbook indicates that some food service management positions 
require no such degree. 
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'S QUALIFICATIONS 
Another basis for the decision of denial is the Director's finding that the petitioner did not 
demonstrate that the beneficiary is qualified to perform services in a specialty occupation. The 
record of proceeding contains insufficient evidence to· establish that the beneficiary is qualified to 
perform the duties of a specialty occupation position. 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as 
an H-lB nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (1 )(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, 
and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), the regulation at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(C) states that an alien must meet one of the following criteria in order to qualify to 
perform services in a specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(b)(6)
Page 15 
NON-PRECEDENT DECISIOI\ 
(3) Hold an unrestricted state license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately 
engaged in that specialty in the state of intended employment; or 
( 4) Have [a] education, specialized training, and/or progressive! y responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and [b] have recognition of expertise 
in the specialty through progressive! y responsible positions direct! y related to 
the specialty. 
Therefore, to qualify an alien for classification as an H-lB nonimmigrant worker under the Act, the 
petitioner must establish that the beneficiary possesses the requisite license or, if none is required, 
that he or she has completed a degree in the specialty that the occupation requires. Alternatively, if 
a license is not required and if the beneficiary does not possess the required U.S. degree or its 
foreign degree equivalent, the petitioner must show that the beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty through 
progressive! y responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)( 4)(iii)(D) require one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 8 
( 4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
x The petitioner should note that, in accordance with this provision, we will accept a credential evaluation 
service's evaluation of education only, not training and/or work experience. 
(b)(6)
NON-PRECEDENT DECJSIOJ 
Page 16 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience .... 
In accordance with 8 C.P.R.§ 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the 
specialty, three years of specialized training and/or work experience must be 
demonstrated for each year of college-level training the alien lacks .... It must be 
clearly demonstrated that the alien's training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the 
specialty occupation; that the alien's experience was gained while working with 
peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and that the alien has recognition of expertise in the 
specialty evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two 
recognized authorities in the same specialty occupation; 9 
(ii) Membership in a recognized foreign or United States association or 
society in the specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign 
country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
9 
Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)(4)(ii). 
A recognized authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's 
experience giving such opinions, citing specific instances where past opinions have been accepted as 
authoritative and by whom; (3) how the conclusions were reached; and (4) the basis for the conclusions 
supported by copies or citations of any research material used. Id. 
(b)(6)
NON-PRECEDENT DECISJOJI. 
Page 17 
B. Analysis 
The record does not indicate that the beneficiary has any postsecondary education. The beneficiary 
may only be shown to have the equivalent of a bachelor's degree in a specific specialty pursuant to 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4), which is set out above. That equivalence must be shown either by 
the evaluation described at 8 C.P.R. § 214.2(h)(4)(iii)(D)(l) or by a USCIS finding as described at 
8 C.P.R. § 214.2(h)(4)(iii)(D)(5). 
The record contains evidence that the beneficiary has previously worked in the food service 
industry. However, the record does not contain an evaluation of the beneficiary's employment 
experience in terms of its equivalence to a college education and degree. 10 The beneficiary has not 
been shown to have the equivalent of a college degree pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(D)(J). 
The remaining regulation pursuant to which the petitioner might show that the beneficiary is 
qualified to work in a specialty occupation position is 8 C.P.R. § 214.2(h)(4)(iii)(D)(5). However, 
although the record contains evidence pertinent to the beneficiary's previous experience, it contains 
insufficient evidence that the beneficiary has received recognition of expertise in the specialty 
evidenced by any of the indices listed at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5)(i) through (v). Evidence 
in satisfaction of one or more of those indices is required for a finding pursuant to 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5).
11 
10 
In the appeal brief, the petitioner asserted that an evaluation was submitted with a previous Form I-129 
visa petition, filed for the beneficiary by a different employer. The petitioner asserted that it was unable to 
obtain a copy of that evaluation during the time available, but that if accorded additional time it would either 
obtain a copy of that previous evaluation or commission a new evaluation. 
Evidence that the beneficiary is qualified to work in the proffered position is part of the petitioner's initial 
evidence, to be submitted with the visa petition. Because such evidence was not submitted with the visa 
petition, rhe service center, in the January 30, 2014 RFE, requested an evaluation of the beneficiary's 
qualifications. No evaluation was included in the response to that RFE received by USCIS on April 29, 
2014. The Form I-290B appeal in this matter was submitted on July 7, 2014, but was not accompanied by an 
evaluation of the beneficiary's qualifications. Subsequently, on August 7, 2014, the petitioner submitted the 
appeal brief and some additional evidence, but not the required evaluation. We issued a notice to the 
petitioner on April 17, 2015 regarding signature discrepancies in the file and provided the petitioner an 
opportunity to "supplement the appellate brief with respect to any issue in this proceeding." As of the date of 
this decision, the evidence of record does not contain an evaluation of the beneficiary's qualifications. 
11 
The interpretation of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCIS determination, and by 
the clear terms of the rule, experience will merit a positive determination only to the extent that the record of 
proceeding establishes all of the qualifying elements at 8 C.F.R. § 214.2(h)( 4)(iii)(D)(5) - including, but not 
limited to, a type of recognition of expertise in the specialty occupation. 
(b)(6)
NON-PRECEDENT DECIS!OA 
Page 18 
The petitioner has not shown, pursuant to the requirements of the salient regulations, that the 
beneficiary is qualified to work in any specialty occupation. The appeal will be dismissed and the 
visa petition denied for this additional reason. 
V. MAINTENANCE OF NONIMMIGRANT STATUS 
The remaining basis of the decision of denial is the Director's determination that the beneficiary 
failed to maintain her nonimmigrant status and that this failure precludes an extension of stay or a 
change of nonimmigrant status. As issues surrounding the beneficiary's maintenance of 
nonimmigrant status are within the sole discretion of the Director, we do not have jurisdiction over 
this matter. According} y, we will not address this issue. 
VI. 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. We also find that the 
evidence of record is insufficient to establish the beneficiary's qualifications for the proffered 
position. Accordingly, the appeal will be dismissed and the petition denied. 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting 
that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.