dismissed H-1B Case: Food Services

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration St:rvice� 
Administrative Appeals Oflicc (AAO) 
20 Massachusells Ave .. N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 3 1 2015 OFFIC E: VERMO NT SER VICE CENT ER FILE : 
IN RE: Petitioner: 
Beneficiary: 
PETITIO N: Petition for a Nonimmigrant Worker Pursuant to Section IOI (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 PETITI ON ER: 
INSTRUCTIONS: 
Enclo sed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you be lieve the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respective ly. Any motion must be filed on a Notice of Appeal or Motion (Form 
1-2908) within 33 days of the date of this decision. Please review the Form l-2908 instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § I 03.5. Do not file a motion directly with the AAO. 
Th# 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmi grant visa petition. The matter is 
now on appeal bef ore the Administrative Appeals Office (AAO). The appeal will be dismissed. 
The petition will be denied. 
On the Form I- 12 9, Petition for a Nonimm igrant Worker, the petitioner describes itself as a food 
services business 1 that was established in . In order to employ the beneficiary in what it 
designates as a business analyst position, the petitioner seeks to classif y him as a nonimmigrant 
worker in a specialty occupation pursuant to section 10l(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § ll 0l( a)(15) (H)(i)(b). 
The director denied the petition, concluding that the evidence of record does not establish that the 
proffered position is a specialty occupation in accordance with the applicable statutory and 
regulatory provisions. Counsel for the petitioner subsequently filed an appeal. On appeal, counsel 
asserts that the director's basis for denial of the petition was erroneous and contends that the 
petitioner satisfied all evidentiary requirements. 
After conducting an initial review of the documentation, we found that the signatures of the 
petitioner and counsel were visibly different thro ughout the record and issued a request for evidence 
(RFE) regarding the matter on September 25, 20 14. The petitioner responded to our RFE on 
October 10, 20 14. The petitioner's response addressed our concerns, and the appeal wi II be 
adjudicated on its merits. 
The record of proceeding before us contains: (1) the Form I- 129 and supporting documentation; 
(2) the director's RFE; (3) counsel's response to the RFE; (4) the notice of decision; (5) the Form 
I-2908, Notice of Appeal or Motion; (6) our RFE; and (7) counsel's response to our RFE. We 
reviewed the record in its entirety before issuing our decision. 2 
For the reasons that will be discussed below, we agree with the director's decision that the evidence 
of record does not establish the petitioner's eligibility for the benefit sought. Accordingly, the 
director's decision will not be disturbed. The appeal will be dismissed, and the petition will be 
denied. 
I. FACTURAL AND PROCEDUR AL HISTORY 
1 The petitioner provided a North American Industry Class ification System (NAICS) Code of 7221 10, "Full 
Service Restaurants." U.S. Dep't of Commerce, U.S. Census Bureau, North American Industry 
Classification System, 2007 NAICS Definition, "72211 0 Full Service Restaurants," 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited March 27, 20 15 ). 
2 We conduct appellate review on a de novo basis. See So/lane v. DO.J, 381 F.3d 143, 145 (3d Cir. 2004). 
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In the Form I- 129 petition, the petition er indicated that it is seeking the beneficiary's services as a 
business analyst on a full-time basis. In the letter of support, the petitioner stated that the 
beneficiary's job duties will include the following: 
In the position of Business Analyst, [the beneficiary] will be responsible for the 
following: 
• Conduct economic impact analyses. 
• Analyze and research market trends, interpreting data concernmg 
expenditure, price and future trends through daily reports. 
• Conduct operation research to recommend improvements of operations. 
• Compile information to keep informed on price trends and customer 
needs and preference. 
• Prepare analysis reports on market conditions. 
• Developing and maintaining new and existing client relationships through 
the establish ment of new networks and referrals from custo mer service. 
[The beneficiary] will also research and analyze service/product costs and 
classifications to minimize costs and maximize customer satisf action. He will be 
authorized to create these instruments and [will be] responsible for implementing 
their use. He will also advise management on the strength of competition, and 
changes in custome r activities. Th is involves performing detailed analysis of 
profitability to recommend effective actions; analyze market trends and competitor 
data to forecast pricing models; provide insight on the impact of price changes on 
growth rates and profitability and the impact of price changes to the business. This 
information will assis t the company in determining which changes should be made 
within the company in order to remain at the top of the industry. 
Additional responsibilities of the Business analyst position include: 
• Conduct ongoing economic research in order to identify business 
opportunities. 
• Exam ine current structure of business operations, diagnose areas of 
inefficiencies, and deliver solutions to the issue presented. 
• Commu nicate effectively with internal and external customers in order to 
identify, define, and validate the internal changes required to achieve the 
company's goals. 
• Analyze major property and equipment procurement. 
• Review business proposals, and analyze options, risks, and costs. 
• Collect, review, and analyze data in order to aid directors the preparation 
and presentation of business proposals[.] 
• Prepare budgets for approval, including those for funding and 
implementation of programs. 
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• Provide assistance with special projects that require data mining, analysis 
or reporting. 
Other responsibilities may include: 
• Prepare and present reports to executives[;] 
• Participate in all team meetings and company sponsored sales events as 
sanctioned by the management team[;] 
• Take ambiguous and complex business problems and using research and 
business assessment capabilities, define the problem, drive innovative 
ideas, define the opportunity set, and recommend actionable next steps; 
• Analyze as-is and to-be business processes and translate into use cases, 
identif ying risks and impacts on existing systems and processes; 
• Determine how to measure business results, modeling current/future 
business processes, gathering business requirements, and identif ying the 
organizational changes required to successf ully realize the benefits of the 
solutions; 
• Develop and apply conceptual frameworks and analytical approaches[;] 
• Scrutinize customer trends in order to understand the environment in 
which client's [sic] are operating, and develop strategies to adapt the 
client's operations to the consum ers' needs; 
• Take part of the creation, improvement and development of presentations 
to clients or potential clients; and 
• Examine new business opportunities that could increase the company's 
share in the market[.] 
This position requires knowledge of economic and financial analysis, typically 
acquired in a bachelor's degree program in business administration, economics and 
finance or a related discipline. 
With the initial petition, the petitioner submitted copies of the beneficiary's foreign diploma and 
transcript, as well as a credential evaluation from The credential 
evaluation indicates that the beneficiary's foreign education is equivalent "of at least a Bachelor's 
degree in Business Administration at an accredited institution in the United States. " 
The petitioner also submitted a Labor Condition Application (LCA) in support of the instant H-1 B 
petition. The LCA designation for the proffered position corresponds to the occupational 
classification of "Management Analysts" - SOC (ONET/OES Code) . at a Level I (entry 
level) wage. In addition, the petitioner submitted job vacancy announcements. 
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Upon review of the documentation, the director found the evidence insuf ficient to establish 
eligibility for the benefit sought, and issued an RFE. The director outlined the specific evidence to 
be submit ted. Counsel responded with a brief and additional evidence. 3 
The director reviewed the documentation and found it insufficient to establish eligibility for the 
benefit sought. The director denied the petition on February 12, 2014 . Counsel submitted an appeal 
of the denial of the H-IB petition. 
II. SPECIALTY OCC UPATION 
As noted above, the director determined that the evidence of record does not establish that the 
position proffered here is a specialty occupation. Accordingly, the issue on appeal is whether the 
petiti oner provided sufficient evidence to establish that it will employ the beneficiary in a specialty 
occ upation position. To meet its burden of proof in this regard, the petitioner must establish that the 
employment it is offering to the beneficiary meets the applicable statutor y and regulatory 
requirements. 
A. The Law 
Section 21 4(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) att ainment 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 [(l)] 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 scien ces, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
atta inment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occ upation in the United States. 
3 We observe that in the brief, counsel provided the approximate percentages of time allocated to each duty 
listed in the petitioner's letter of support. However, counsel's brief was not signed by or otherwise endorsed 
by the petitioner. The record of proceeding does not indicate the source of the percentages oftime allocated 
to each duty that counsel attributes to the proffered position. 
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Pursuant to 8 C.F.R. § 214 .2(h)(4)(iii)(A), to qualif y as a specialty occupation, a proposed position 
must also 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 alterna tive, an employer may show 
that its particular position is so complex or unique that it can be perf ormed 
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 associ ated with the 
attainm ent of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 21 4.2(h)(4)(iii)(A) must logically be read together 
with section 21 4(i)(l) of the Act and 8 C.F.R. § 21 4.2(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, 29 1 (19 88) (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. 
§ 21 4.2(h)(4)(iii)(A) should logically be read as being necessary but not necessa rily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessa ry and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condit ion under 8 C.F.R. 
§ 21 4.2(h)( 4 )(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 20 1 
F.3d 387. To avoid this result, 8 C.F.R. § 21 4.2(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 consona nt with section 21 4(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 21 4.2(h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.F.R. 
§ 21 4.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific 
specialty that is directly related to the proffered position. See Royal Siam Corp. v. Cherto_ff, 484 
F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one that 
relates directly to the duties and responsibilities. of a particular position"). Applying this standard, 
US CIS 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 
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represent the types of specialty occupations that Congress contemplated when it created the H-1 B 
visa category. 
To determine whether a particu lar job qualifies as a specialty occupation, USCIS does not simply 
rely on a posit ion'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 qual ities as a specialty 
occupation. See generally Defensor v. Meissner, 201 F.3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
B. Analysis 
As a preliminary matter, the petit ioner stated that the proffered position requires a bachelor's degree 
"in business administration, economics and finance or a related discipline." It must be noted that 
the petitioner's claim that a bachelor's degree in business administration is a sufficient minimum 
requirement for entry into the proffered position is inadequate to establish that the proposed position 
qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position 
requires a precise and specific course of study that relates directly and closely to the position in 
question. 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 
Mi chael Hertz Associates, 19 I&N Dec. 558 (Comm'r 19 88). 
To demonstrate that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 21 4(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 will be discussed in more detai l below, 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 qualities for classification as a 
specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 200 7).4 
4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he courts and the agency consis tently have stated that, although a general-purpose 
bachelor's degree, such as a busi ness administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not just ify the grantin g 
of a petition for an H- 1 B spec ia lty occupation visa. See, e.g.. Tapis lnl'l v. INS, 94 
F. Supp.2d 172, 175-76 (D.M ass.2000); Shanti, 36 F. Supp.2d at 11 64-66; cf Matter of 
Michael Hertz Assocs., 19 I & N Dec. 55 8, 56 0 ([Comm'r J 1988) (providing frequently cited 
analysis in connection with a conceptually similar prov ision). This is as it shou ld be: 
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Again, the petitioner in this matter claims that the duties of the protTered position can be performed 
by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business 
administratio n. Without more, this assertion indicates that the proffered position is not in fact a 
specialty occupation. 
Further, upon review of the petitioner's description of the duties of the proffered position, we note 
that the evidence of record does not include any information with regard to the order of importance 
and/or frequency of occurrence with which the beneficiary will perform the functions and tasks. 
Thus, the evidence of record does not specify which tasks are major functions of the proffered 
position and it did not establish the frequency with which each of the duties would be performed 
(e.g., regularly, periodically or at irregular intervals). As a result, the evidence of record does not 
establish the primary and essential functions of the proffered position. 
Moreover, we find that the petitioner, in its support letter, described the proposed duties in terms of 
generalized and generic functions that do not to convey sufficient subst antive information to 
establish the relative complexity, uniq ueness and/or specialization of the proffered position or its 
duties. The abs tract level of information provided about the proffered position and its constituent 
duties is exemplified by the petition er's assert ion the benefi ciary will "[c]onduct economic impact 
analyses." However, the state ment does not provide any insight into the beneficiary's actual duties, 
nor does it include any information regarding the specific tasks that the beneficiary will perform. 
In additi on, the petitioner claimed that the beneficiary will "[a]nalyze and research market trends, 
interpreting data concerning expenditure, price and future trends through daily reports" and 
"[a]nalyze major property and equipment procurement." Notably, the evidence of record does not 
demonstrate how the performance of these duties, as described in the record, would require the 
attainment of a bachelor's or higher degree in a specific specialty, or its equivalent. 
The petitioner further claimed the beneficiary will "[p]repare budgets for approval, including those 
for funding and implementation of programs" and "[d]evelop and apply conceptual frameworks and 
analytical approaches." The petitioner's statements fail to convey any pert inent details as to the 
actual work involved in these tasks. The petitioner does not explain the beneficiary's specific role 
and how his work will be conducted and/or applied within the scope of the petitio ner's business 
operations . Furthermore, the evidence of record does not convey how a baccalaureate level of 
education (or higher) in a specific specialty, or its equivalent, would be required to perform these 
tasks. Thus, the overall responsibilities for the proffered position contain generalized functions 
without providing sufficient information regarding the particular work, and associated educational 
requirements, into which the duties would manif est themse lves in their day-to-day performance 
within the petitioner's busin ess operations. 
!d. 
elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essent ially artificial) degree requirement. 
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Such generalized information does not in itself establ ish a necessary correlation between any 
dimension of the proffered position and a need for a particular level of education, or educational 
equivalency, in a body of highly specialized knowledge in a specific specialty. We also observe, 
theref ore, that it is not evident that the proposed duties as described in this record of proceeding, 
and the position that they comprise, merit recognition of the proffered posit ion as a specialty 
occupation. To the extent that they are described by the petit ioner, we find, the proposed duties do 
not provide a sufficient factual basis for conveying the substantive matters that would engage the 
beneficia ry in the actual performance of the proffered position for the entire three-year period 
reque sted, so as to persuasively support the claim that the position's actual work would require the 
theoretical and practical application of any particular educational level of highly specialized 
knowledge in a specific specialty directly related to the demands of the proffered position. 
Furthermore, the evidence of record does not include sufficient documentation to substantia te the 
job duties and responsibilities of the proffered position. The petitioner did not submit any 
documentat ion to substanti ate the beneficia ry's work product, nor did the petitioner submit any 
financial documentation regarding the company's business operations. The record of proceeding 
lacks documentation regarding the petitioner's business activities and the actual work that the 
beneficiary will perform to sub stantiate the claim that the petitioner has H-lB caliber work for the 
beneficiary for the period of employment requested in the petition. For an H-1 B petition to be 
granted, the petitioner must provide sufficient evidence to establish that it will employ the 
beneficia ry in a specialty occupation position. 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 . 15 8, 165 (Comm'r 1998). 
That is, for H-lB approval, the petitioner must demonstrate a legitimate need for an employee exists 
and to substantiate that it has H-lB caliber work for the beneficiary for the period of employment 
requested in the petition. It is incumbent upon the petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
The evidence of record does not contain sufficient details regarding the nature and scope of the 
beneficiary's employment or substa ntive evidence regarding the actual work that the beneficiary 
would perform. Without a meaningf ul job description, the record lacks evidence sufficiently 
concrete and informative to demonstr ate that the proffered position requires a specialty occupation's 
level of knowledge in a specific specialty. The tasks as described fail to communicate ( 1) the actual 
work that the beneficia ry would perform, (2) the complexity, uniqueness and/or specialization of the 
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. The petitioner's assertions with regard to the 
position's educational requirement are conclusory and unpersuasive, as they are not credibly 
supported by the job descriptions or substantive evidence. That the petitioner has also referred to 
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the position as a "contro ller" as well as a "market research analyst" during the pendency of the 
petition detracts further from the petitioner's credibility. 
Furthermore, we note that it is reasonable to assume that the size of an employer's business has or 
could have an impact on the duties of a particular position. See EG Enterprises, Inc. d/b/a/ Mexican 
Wholesale Grocery v Department of Homeland Security, 467 F. Supp. 2d 728 (E.D. Mich. 2006). 
Thus, the size of a petitioner may be considered as a component of the nature of the petitioner's 
business, as the size impacts upon the duties of a particular position. In matters where a petitioner's 
business is relatively small, we review the record for evidence that its operations, are, nevertheless, 
of sufficient complexity to indicate that it would employ the beneficiary in position requiring the 
theoretical and practical application of a body of highly specialized knowledge that may be obtained 
only through a baccalaureate degree or higher in a specific specialty, or its equivalent. 
Additi onally, when a petitioner employs relatively few people, it may be necessary for the petitioner 
to establish how the beneficiary will be relieved from performing non-qual ifying duties. In the 
instant case, the director specifically noted this issue in the RFE; however, the petitioner and 
counsel elected not to address or provide probative documentation as to how the beneficiary will be 
relieved from performing non-qu alifying duties. 
Nevertheless, we will address each criterion of the regulations for the purpose of providing a 
comprehensive discussion on the specialty occupation issue. We will first review the record of 
proceeding in relation to the criterion at 8 C.F.R. § 214.2(h)(4)( iii)(A)(1), which requires that a 
baccala ureate 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 (DOL) Occupational Outlook Handbook (Handbook) 
as an authoritative source on the duties and educational requirements of the wide variety of 
occupations it addresses. 5 As previously discus sed, the petitioner attested in the LCA that the 
proffered position falls under the occupational category "Management Analysts." 
The Handbook states the following with regard to the duties of positions falling within the 
"Management Analysts " occupational category: 
Management analysts, often called management consultants, propose ways to 
improve an organization's efficiency. They advise managers on how to make 
organizations more profitable through reduced costs and increased revenues. 
Duties 
Management analysts typically do the following: 
The Handbook, which is available in printed form, may also be accessed online at 
http://www.stats.b ls.gov/oco/. Our references to the Handbook are from the 20 14-15 edition available 
online. 
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• Gather and organize information about the problem to be solved or the procedure 
to be improved 
• Interview personnel and conduct on-site observations to determine the methods, 
equipment, and personnel that will be needed 
• Analyze financ ial and other data, including revenue, expenditure, and 
employment reports 
• Develop solutions or alternative practices 
• Recommend new systems, procedures, or organizational changes 
• Make recommendations to management through presentations or written reports 
• Confer with managers to ensure that the changes are working 
Although some management analysts work for the organization that they are 
analyzing, most work as cons ultants on a contractual basis. 
Whether they are self-employed or part of a large consulting company, the work of a 
management analyst may vary from project to project. Some projects require a team 
of consultants, each specializing in one area. In other projects, consultants work 
independently with the client organization's managers. 
Management analysts often specialize in certain areas, such as inventory management 
or reorganizing corporate structures to eliminate duplicate and nonessential jobs. 
Some consu ltants specialize in a specific industry, such as healthcare or 
telecommu nications. In government, management analysts usually specialize by type 
of agency. 
Organizations hire consultants to develop strategies for entering and remammg 
competitive in the electronic marketplace. 
Management analysts who work on contract may write proposals and bid for jobs . 
Typically, an organization that needs the help of a management analyst solicits 
proposals from a number of consultants and consulting companies that specialize in 
the needed work. Those who want the work must then submit a proposal by the 
deadline that explains how they will do the work, who will do the work, why they are 
the best consult ants to do the work, what the schedule will be, and how much it will 
cost. The organization that needs the consult ants then selects the proposal that best 
meets its needs and budget. 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into positions within this occupational category: 
Most management analysts have at least a bachelor's degree. The Certified 
Management Consultant (CMC) designation may improve job prospects. 
Education 
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A bachelor's degree is the typical entry-level requirement for management analysts. 
However, some employers prefer to hire candidates who have a master's degree in 
business administration (MBA). 
Few colleges and universities offer formal programs in management consulting . 
However, many fields of study provide a suitable education because of the range of 
areas that management analysts address. Common fields of study include business, 
management, economics, political science and government, accounting, finance, 
marketing, psychology, computer and information science, and English. 
Analysts also routinely attend conferences to stay up to date on current developments 
in their field. 
Licenses, Certifications, and Registrations 
The Institute of Management Consultants USA (lMC USA) offers the Certified 
Management Consu ltant (CMC) designation to those who meet minimum levels of 
education and experience, submit client reviews, and pass an interview and exam 
covering the IMC USA's Code of Ethics. Management consul tants with a CMC 
designation must be recertified every 3 years. Management analysts are not required 
to get certifica tion, but it may give jobseekers a competitive advantage. 
Work Experience in a Related Occupation 
Many analysts enter the occupation with several years of work experience. 
Organizations that specialize in certain fields typically try to hire candidates who 
have experience in those areas. Typical work backgrounds include management, 
human resources, and information technology. 
U. S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 20 14-15 ed., 
Management Analysts, on the Internet at http:// www .bls.gov/ooh/business-and­
financiallmanagement-a nalysts. htm#tab-4 (last visited March 27, 201 5). 
The Handbook reports that management analysts are not required to obtain certification, but that it 
may give jobseekers a competitive advantag e. According to the Handbook, the Institute of 
Management Consul tants USA (IMC USA) offers the Certified Management Consult ant (CMC) 
designation to those who meet minimum levels of education and experience, submit client reviews, 
and pass an interview and exam covering the IMC USA's Code of Ethics. We note that there is no 
indication that the petitioner requires the beneficiary to have obtained the CMC designation or any 
other professional designation to serve in the proffered position. 
The Handbook does not support the assertion that at least a bachelor's degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
Handbook states that many fields of study provide a suitable education for management analysts. 
The Handbook's narrative indicates that common fields of study include business, management, 
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economics, political science and government, accounting, finance, marketing, psychology, 
computer and information science, and English. According to the Handbook, a range of programs 
can help people prepare for jobs in this occupation. The Handbook states that many analysts enter 
the occupation with several years of work experience, and that typical work backgrounds include 
management, human resources, and information technology. The Handbook does not conclude that 
normally the minimu m requirement for entry into these positions is at least a bachelor's degree in a 
specific specialty, or its equivalent. 
In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum 
of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in 
the specific specialty" requirement of section 214(i)(l )(B) of the Act. In such a case, the required 
"body of highly specialized knowledge" would essentially be the same. Since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, however, 
a minimum entry requirement of a degree in disparate fields (such as business, management, 
economics, political science and government, accounting, finance, marketing, psychology, 
computer and information science, and English) would not meet the statutory requirement that the 
degree be "in the specific specialty, " unless the petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required body of 
highly specialized knowledge is essentially an amalgamation of these different specialties.5 Section 
214(i)(l) (B) of the Act (emphasis added). 
In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," 
we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty 
occupations if they permit, as a minimum entry requirement, degrees in more than one closely 
related specialty. See section 214(i)(l) (B) of the Act; 8 C.F.R. § 214. 2(h)(4)(ii). This also includes 
even seemingly disparate specialties providing, again, the evidence of record establishes how each 
acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
Also, the Handbook indicates a baccal aureate degrees in various fields are acceptable for entry into 
the occupation. In addition to recognizing degrees in disparate fields (i.e., business, management, 
economics, political science and government, accounting, finance, marketing, psychology, 
computer and information science, and English), the Handbook state s that a degree in business is 
acceptable. As previously discussed, although a general-purpose bachelor's degree, such as a 
degree in business, 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. Chertoff, 484 F.3d at 147. The refore, the 
Handbook's recognition that a general, non-specialty degree in business is sufficient for entry into 
the occupation stron gly suggests that a bachelor's degree in a speq'fic specialty is not normally the 
minim tim requirement for entry into this occupation. 
When reviewing the Handbook, we must note that the petitioner designated the proffered position as 
a Level I (entry level) position on the LCA. This designation is indica tive of a comparatively low, 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
entry-level posttlon relative to others within the occupation. 6 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 
benefici ary 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. DOL guidance 
indicates that a Level I designation should be considered for positions in which the employee will 
serve as a research fellow, worker in training, or an intern. 
In the instant case, the evidence of record does not esta blish that the proffered position falls under 
an occupational category for which the Handbook (or other objective, authoritative source) indicates 
that at least a bachelor's degree in a specific specialty, or its equivale nt, is normally the minimum 
requirement for entry into the occupation. Furthermore, the duties and requirements of the 
proffered position as described in the record of proceeding do not indicate that the position is one 
for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimu m requirement for entry. Thus, the evidence of record does not satisfy the criterion at 
8 C.F.R. § 21 4.2( h)(4)(iii)(A)(l). 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 21 4.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to esta blish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the petitioner's industry in positions that are both: (1) parallel to the proffered position; and 
(2) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often consid ered by 
USC IS 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 
6 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage 
rate is describes as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform 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 clo se 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 l wage shou ld be considered. 
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.dol eta.gov/ 
pdf/NPWHC_Guidance_Revised _1 1_2009.pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
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 , 116 5 (D. 
Mi nn. I9 99) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 19 89)). 
As previously discus sed, the evidence of record does not establish that its proffered position is one 
for which the Handbook, or other authoritative source, reports a standard industry-wide requirement 
for at least a bachelor's degree in a specific specialty, or its equiva lent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submiss ions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
Furthermore, the petitioner did not submit any letters or affidav its from similar firms or individuals 
in the petitioner's indust ry attesting that such firms "routinely employ and recruit only degreed 
individua ls." 
The petitioner and counsel submit ted copies of job advertisements in support of the assertion that 
the degree requirement is common to the petitioner's industry in parallel positions among similar 
organizations. However, upon review of the documents, we find that the petitioner and counsel's 
reliance on the job announcements is misplaced. 
For the petitioner to esta blish that an organization located within the same industry is also similar to 
it, it must demon strate that the petitioner and the organization share the same general 
characteristics. Without such evidence, documentat ion submit ted by a petitioner is generally 
outside the scope of consid eration for this criterion, which encompasses only organizations that are 
similar to the petitioner. When determining whether the petitioner and the organization share the 
same general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). It is not sufficient for the petitioner 
and counsel to claim that an organization is both similar and located within the same industry 
without providing a legitimate basis fo r such an assertion. 
In this matter, the petitioner and counsel submitted advertisements for organizations that do not 
appear to be similar to the petitioner. More specifically, the advert isements include positions with 
(a company in the computer/information technology services industry), and 
Without further information, the advertisements appear to be for organizations that are not similar to 
the petition er and the petitioner has not provided any probative evidence to suggest otherwise. 
Furthermore, the petitioner and counsel submit ted a job posting placed by a staf fing firm 1 
for which little or no information regarding the employer is provided. Consequently, the record is 
devoid of sufficient information regarding these advertising employers to conduct a legitimate 
comparison of the organizations to the petitioner. The petitioner did not supplement the record of 
proceeding to esta blish that the advertising organizations are similar to it. That is, the petitioner has 
not provided any information regarding which aspects or traits (if any) it shares with the advertising 
organizations. Again, the petitioner must demonstrate the degree requirement is common to the 
industry in parallel positions among similar organizations within the industry. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
Furthermore, the evidence of record does not establish that the advertisements are for parallel 
positions. For instance, the petitioner and counsel provided a posting for which requires 
a candi date to possess a degree and "at least five years of business analyst experience." Another 
submi ssion is for which requires a candi date to possess a degree and a "[m]inimum of 5-7 
years of FP/A experience." In addition, the petitioner and counsel provided a posting for 
, which requires a candida te to possess a degree and "more than ten years of experience 
wit h a proved record of successful, large scale project implementations." However, as previously 
discuss ed, the petition er designated its proffered position as a wage Ievel l (entry level) on the LCA. 
The advertised posit ions appear to be for more senior positions than the proffered position. More 
importantly, the evidence of record does not sufficiently esta blish that the primary duties and 
responsibilities of the advertised positions are parallel to the proffered position. 
In addition, cont rary to the purpose for which the advertisements were submit ted, the postin gs do 
not establish that at least a bachelor's degree in a specific specialty, or its equivalent, is required for 
the positions. For example, three of the postings (specifically, the , and 
postings) state that a bachelor's degree is required, but they do not provide any further 
specification. We reiterate that the degree requirement set by the statutor y and regulatory 
framework of the H-1 B program is not just a bachelor's or higher degree in any field, but such a 
degree in a spec{fic specialty that is directly related to the specialty occupation claimed in the 
petition. The petitioner and counsel also subm itted a posting for indicating that a 
bachelor's degree in business admini stration is acceptable. 7 
As the documenta tion does not estab lish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed. The evidence does 
not establish that the proffered position qualifies as a specialty occupation under this criterion of the 
regulations . 8 
7 As previous ly discussed, although a general-purpose bachelor's degree, such as a degree in business, may 
be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a 
finding that a particular position qualities for classification as a specialty occupation. See Royal Siam Cor p. 
v. Chertoff, 484 F.3d at 147. 
8 Al though the size of the relevant study population is unknown, the evidence of record does not demonstrate 
what statistically valid inferences, if any, can be drawn from these advertisements with regard to determining 
the common educational requirements for entry into parallel positions in similar companies. 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 19 5- 196 (explaining that "[r]an dom 
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"). 
Further, without more, it cannot be found that such a limited number of postings that appear to have been 
conscious ly sele cted could credibly refute the findings of the Handbook publi shed by the Bureau of Labor 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
In support of the assertion that the proffered position is a specialty occupation under this criterion of 
the regulations, the petitioner and counsel also submit ted a letter from of 
("the writer ").9 We reviewed the letter in its entirety. However, contrary to the purpose for which 
the letter was subm itted, it is not persuasive in esta blishing the proffered position as a specialty 
occupation position under any of the criteria at 8 C.F.R . § 214 .2(h)(4)(ii i)(A). 
The letter does not establ ish that at least a bachelor's degree in a specific specialty, or its equivalent, 
is required for the position. For instance, the letter indicates that a degree in a wide variety of 
disciplines is acceptab le.10 Specifically, in the letter, Ms. states that "a degree in business, 
accounting, marketing or economics, is common to the industry for a Business Analyst position 
among companies engaged in food services (emphasis added)." Again, while a general-purpose 
bachelor's degree, such as a degree in "business," may be a legitimate prerequisite for a particular 
position, requiring such a degree, without more, will not justify a findin g that a particular position 
qualifies for classification as a specialty occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 
14 7 (1st Cir. 2007). 
Furthermore, the writer failed to provide any specific job duties and day-to-day responsibilities for 
the position claimed to require a bachelor's degree. Ther e is no information regarding the 
complexity of the job duties, supervisory duties (if any), independent judgment required or the 
amount of supervision received. Accordingly, there is insufficient information regarding the duties 
and responsibilities of the writer's organization's position to determine whether the position is the 
same or parallel to the proffered position. Moreover, although the writer provided the foreign 
diploma and payroll summ ary of its business analyst, � she did not 
submit the academic credential evaluation for Mr. to esta blish that his foreign educat ion is 
equiva lent to a U.S. bachelor's degree in a specific specialty. 11 The writer has failed to subm it any 
Statistics that such a position does not require at least a baccalaureate degree in a specific specialty, or its 
equiv alent, for entry into the occupation in the Un ited States. 
9 Notably, the letter was prepared on the same letterhead as that used for the petitioner's letter of support. 
10 
As previo usly discussed, since there must be a close correlation between the required "body of highly 
specialized knowledge" and the position, a minimum entry requirement of a degree in disparate fields would 
not meet the statutory requirement that the degree be "in !he spec ific specialty," unless the petitioner 
establis hes how each field is directly related to the duties and responsibilities of the particular position such 
that the required "body of highly specialized knowledge" is essent ially an amalgamation of these different 
specialties. Section 21 4(i)( I )(B) of the Act (emphasis added). 
11 
It must be noted for the record that it is unclear whether Mr. is an employee of the petitioner or 
While the letter from Ms. and the payroll summary indicate that he is an employee of 
, counsel claims, in response to the director's RFE and on appeal, that he is an employee of the 
petitioner. No explanation for this discrepancy is provided. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
probative evidence of its recruitment and hiring practices. Thus, the letter does not estab lish that 
the proffered position qualifies as a specialty occupation. 
Thus, based upon a complete review of the record, 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 
the petitioner's indus try in positions that are both: ( 1) parallel to the proffered position; and 
(2) located in organizations that are similar to the petitioner. For the reasons discussed above, the 
evidence of record does not satisfy the first alternative prong of 8 C.F .R. § 21 4.2 (h)(4)(iii)(A)(2). 
We will next consider the second alternative prong of 8 C.F.R. § 21 4.2(h)(4)(iii)(A)(2), which is 
sati sfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation under this 
criterion, the petitioner submit ted a letter of support with the initial submission in this matter, and 
menus and photos of in response to the director's RFE. No additional 
supporting evidence regarding the proffered position and the petitioner's business operations was 
provided. 
Upon review, we find that the petition er has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. For instance, the petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the duties it may believe are so complex and unique. 
While a few related courses may be beneficial, or even required, in performing certain duties of the 
position, the evidence of record does not estab lish how an esta blished curriculum of such courses 
leading to a bacca laureate or higher degree in a specific specialty, or its equivalent, is required to 
perform the duties of the proffered position. The description of the duties does not specifically 
identify any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. 
12 
The petitioner has indicated that the beneficiary's educational background will assist him in carrying 
out the duties of the proffered position. However, the test to estab lish a position as a specialty 
occupation is not the skill set or education of a proposed beneficiary, but whether the position itself 
qualifies as a specialty occupation. In the instant case, the evidence of record does not establish 
which of the duties, if any, of the proffered position would be so complex or unique as to be 
12 
Again, we note that the petitioner designated the proffered position on the LCA at a Level I wage level. 
This designation indicates that the proffered position is a low-level, entry position relative to others within 
the occupational category "Management Analysts." Such a designation is inconsistent with a claim that the 
duties of the position are complex and unique as such a position would likely be cl assified at a higher-level, 
such as a Level Ill (experienced) or Level IV (fully competent) position, requiring a sign ificantly higher 
prevailing wage. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
disti nguishable from those of similar but non-degreed or non-specialty degreed employment. The 
evidence of record does not satisfy the second alternative prong of 8 C.F.R. § 214 .2(h)(4)(iii)(A)(2). 
The third criterion of 8 C.F .R. § 21 4.2(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. We 
usually review the petitioner's past recruiting and hiring practices, as well as information regarding 
employees who previously held the position. 
To satisfy this criterion, the record must establish that a petitioner's imposition of a degree 
requi rement is not merely a matter of preference for high-caliber candidates but is necessitated by 
performance requirements of the position. 13 In the instant case, the record does not establish a prior 
history of recruiting and hiring for the proffered position only persons with at least a bachelor's 
degree in a specific specialty, or its equivalent. 
While a petitioner may assert that a proffered position requires a specific degree that opinion alone 
without corroborating evidence cannot establ ish the position qualifies as a specialty occupation. 
Were USCI S limited solely to reviewing a petitioner's claimed self-imposed requirements, then any 
indiv idual 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-1 8 
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 statutor y or regulatory definition of a specialty 
occupation. See section 214 (i)(l) of the Act; 8 C.F .R. § 214 .2 (h)(4)(ii) (defining the term "specialty 
occupation"). 
The petitioner stated in the Form 1-129 petition that it has 24 employees and was established in 
(approximately five years prior to the filing of the H- 1 8 petition). As previously noted, it is 
unclear whether Mr. is an employee of the petitioner or The petitioner did not 
provide any documentary evidence to support that this indiv idual was ever employed by the 
petitioner in the position of business analyst. The record does not esta blish a prior history of 
recruiting and hiring for the proffered position only persons with at least a bachelor's degree in a 
specific specialty, or its equivalent. 
Upon review of the record, we find that the petitioner has not provided probative evidence to 
esta blish that it normally requires at least a bachelor's degree in a specific specialty, or its 
13 Any such assertion would be undermined in this particular case by the fact that the petitioner indicated in 
the LCA that its proffered position is a comparatively low, entry-level position relative to others within its 
occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
equi valent, for the proffered position. Thus, the evidence of record does not satisfy the third 
criterion of 8 C. F.R . § 21 4. 2(h)(4) (ii i)(A). 
The fourth criterion at 8 C.F.R . § 21 4. 2( h)(4 )(iii )(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associa ted with the attainment of a baccal aureate or higher degree in a specific specialty, or 
its equivalent. 
Upon review of the record of the proceeding, we note that the petitioner has not provided probative 
evidence to satisfy th is criterion of the regulations. In the in stant case, relative special ization and 
complexity have not been sufficiently developed by the petition er as an aspect of the proffered 
position. That is, the proposed duties have not been described with sufficie nt specificity to establish 
that they are more special ized and complex than positions that are not usual ly associa ted with at 
least a bachelo r's degree in a specific specialty, or its equivalent. 
Fu rthermore, we reiterate our earlier comme nts and findings with regard to the implication of the 
petition er's designation of the proffered position in the LCA as a Level I (the lowest of four 
assi gnable levels) . 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 li kely distinguishable by 
relatively specialized and complex duties. As noted earlier, DOL indi cates that a Level I 
desig nation is appropriate for "begin ning le vel employees who have only a basic understand ing of 
the occupat ion. " Without further evidence, it is not credi ble that the petitioner's proffered position 
is one with specialized and complex duties as such a position would li kely be classif ied at a 
hi gher-level, such as a Level III (experienced) or Level IV (fully com petent) position, requiri ng a 
signifi cantly higher prevai ling wage. For instance, ·a Level IV (fully com petent) position is 
desig nated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problem s." The evidence of record does not satisfy the criterion of the 
regulations at 8 C.F.R. § 21 4.2( h)(4) (ii i)(A)(4). 
In addition, counsel referred to unpu blished decisions in which we determined that the positions in 
those matters qua lified as specialty occupation positions. 14 However, counsel has furnis hed no 
evidence to establi sh that the facts of the in stant petition are analogous to those in the unpu blished 
decisions. While 8 C.F .R . § 10 3 .3( c) provides our precedent decisions are binding on all USC IS 
employees in the admini stration of the Act, unpu bli shed decisions are not simi larly binding. 
When any person makes an application for a "vis a or any other document required for entry, or 
makes an appli cation for admission [ ... ] the burden of proof shall be upon such person to establis h 
that he is eligible" for the benefit. 8 U.S.C. § 13 61; see also Matter a/ Treasure Craft ofCalifornia, 
14 l&N Dec. 19 0. Furthermore, any suggestion that USCIS must review unpubl ished decisions and 
possibly request and review each case file rele vant to those decisions, while being impractical and 
inefficient, would also be tantamount to a shift in the evid entiary burden in this proceeding from the 
petitioner to USCIS, which would be co ntrary to section 291 of the Act, 8 U.S.C. § 13 61. 
14 We observe that counsel incorrectly claimed that the decisions are our precedent decisions. 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
Accordingly, the USCIS was not required to request and/or obtain a copy of the unpub lis hed 
decisions cited by counsel. 
If a petitioner wishes to have unpu blished decisions consi dered by USCIS in its adju dication of a 
petition, the petitioner is permitted to submit copies of such evidence that it either obtained itself 
through its own legal research and/or received in response to a Freedom of Information Act request 
filed in accordance with 6 C. F.R . Part 5. Otherwise, "[ t]he non-exi stence or other unavailability of 
requi red evidence creates a presumption of in el igibili ty." 8 C.F .R. § 10 3. 2(b)(2)(i). In the in stant 
case, the evid ence of record does not include copies of the unpublished decisions. As the record of 
proceeding does not contain any evidence of the unpu blished decisions, there were no underlying 
facts to be anal yzed and, therefore, no prior, substantive determinations could have been made to 
determine what facts, if any, were analogous to those in this proceeding. While 8 C.F.R . § 1 03. 3(c) 
provides our precedent decisions are binding on all USC IS employees in the admini stration of the 
Act, unpublished deci sions are not simila rly binding. 
For the reasons related in the preceding discussion, the evi dence of record does not satisfy any of 
the criteria at 8 C. F. R. § 21 4. 2( h)(4)(ii i)(A) and, therefore, it cannot be found that the proffered 
position qual ifies as a specialty occupa tion. The appeal will be dismi ssed and the petition denied 
for this reason. 
III. CONC LUS ION AND ORDER 
·A n application or petition that fails to 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 
decis ion. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d I 025, 10 43 (E. D. Cal. 
200 1) , affd, 345 F.3d 683 (9th Cir. 2003 ); see also Soltane v. DO J, 381 F.3d at 14 5 (noting that we 
conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintif f 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 10 37, a.ffd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm 'n, 35 1 F.3 d 11 77, 118 3 (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 demonst rated that the agency would not have acted on that 
basis if the alternative grounds were unavai lable ."). 
The petition will be denied and the appeal dismi ssed for the above stated reasons, with each 
considered as an independ ent and alternative basis for the decis ion. 15 In visa petition proceedings, it 
15 
As these issues preclude approval of the petition, we will not discuss any of the remaining deficiencies 
we have observed in the record of proceeding, except to note that, if the petitioner is able to overcome them, 
USC IS must explore the following issues before the petition could be approved: (I) whether the LCA 
submitted in support of this petition corresponds to and supports it; and (2) whether the beneficiary is 
qualified to perform the duties of a specialty occupation, taking into account Matter of Ling, 13 I&N Dec. 35 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 29 1 of 
the Act, 8 U.S.C. § 1361 ; Matter ofOtiende, 26 I&N Dec. 12 7, 128 (BIA 20 13). Here, that burden 
has not been met. 
ORDER: The appeal is dismis sed. 
(Reg. Comm'r 1968) .