dismissed H-1B Case: Hospitality

(b)(6)
MATTER OF U-T -&C-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 7, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a hospitality business, seeks to employ the Beneficiary as a food service manager in the 
classification of a nonimmigrant worker in a specialty occupation. See 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, 
Vermont Service Center, initially approved the nonimmigrant visa petition. Upon subsequent 
review of the record of proceeding , the Director issued a notice of intent to revoke (NOIR), and 
ultimately did revoke the approval of the petition. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. BACKGROUND 
The Petitioner submitted a Petition for Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center on September 13, 2011 in order to extend the Beneficiary's employment in what it 
designated as a food service manager position. The Petitioner described itself as a hospitality 
business established in with 12 employees. 
The Director approved the petition; subsequently, a site VISit was conducted. Thereafter, the 
Director issued a NOIR, and ultimately did revoke the approval of the petition. The Petitioner 
submitted an appeal of the decision. 
The record of proceeding contains: (1) the Petitioner 's Form I-129 and supporting documentation; 
(2) the Director's NOIR; (3) the response to the NOIR; (4) the Director's revocation notice; and 
(5) the Notice of Appeal or Motion (Form I-290B) and supporting documents . We reviewed the 
record in its entirety before issuing our decision. 
II. REVOCATION 
The regulation at 8 C.F.R. § 214.2(h)(11)(iii) , which governs revocations , states: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
Matter of U- T-&C-, Inc. 
(I) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving 
training as specified in the petition; or 
(2) The statement of facts contained in the petition . . . was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act 
or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part. If the 
petition is revoked in part, the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the revocation 
notice. 
On appeal, the Petitioner asserts that the NOIR addressed only the Petitioner's compliance with the 
terms and conditions of the petition: specifically, the wages paid to and the duties performed by the 
Beneficiary; but did not sufficiently identify and explain the ultimate ground for revocation: that the 
proffered position is not a specialty occupation. 
After review of the NOIR, we note that while the NOIR called into question the proffered position's 
eligibility as a specialty occupation, the only factual basis for revocation articulated in the NOIR 
was that the Petitioner is not employing the Beneficiary in a specialty occupation consistent with the 
terms and conditions of the approved petition. The Petitioner contends that the NOIR was therefore 
insufficient, and that we should remand the matter to the Director for issuance of a new NOIR. 
However, notwithstanding the issue of sufficiency of the NOIR, the Petitioner has, on appeal, had 
the opportunity to respond to the grounds for revocation discussed in the revocation notice; 
specifically that the proffered position is not a specialty occupation. On appeal the Petitioner has 
provided a detailed rebuttal statement regarding the proffered position as a specialty occupation and 
supplemented the record with additional supporting evidence. It is not apparent that remanding the 
case to the Director would elicit any additional evidence or information; therefore, we will make a 
decision based on the record before us. 
As will be discussed below, we find that the Director's decision to revoke approval of the petition 
accords with the evidence or lack of evidence in the record of proceeding, and that neither the 
response to the NOIR nor the submissions on appeal overcome the grounds for revocation. 
Accordingly, the appeal will be dismissed, and approval of the petition will remain revoked. 
3 
Matter of U-T-&C-, Inc. 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
For an H-IB petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation 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 statutory and regulatory requirements of a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F:R. § 214.2(h)(4)(iii)(A), to qualifY as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
4 
Matter ofU-T-&C-, Inc. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK 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. Chert~[[, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement 
in a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1 B petitions for qualified foreign 
nationals 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-1B 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 foreign national, and determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is 
not the title of the position nor an employer's self-imposed standards, but whether the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate or higher degree in the specific specialty as the minimum for 
entry into the occupation, as required by the Act. 
B. The Proffered Position 
As noted above, the Petitioner indicated on the Form I -129 that it is a hospitality business seeking to 
extend the Beneficiary's employment as a food service manager, performing the duties described 
below: 
5 
(b)(6)
Matter ofU-T-&C- , Inc. 
The duties of the Food Service Manager will continue to be to coordinate food 
service activities of the restaurant, catering service and establishment of food 
services at additional locations. To estimate food and beverage costs and 
purchase supplies. To confer with food preparation and other personnel to plan 
menus for the various operations and the policies to be followed by food service 
personnel. To direct hiring and assignment of personnel , and investigate and 
resolve food quality and service complaints. 
The Food Service Manager will be responsible for reviewing financial 
transactions and monitoring the food service budget to ensure efficient operation, 
and ensure expenditures stay within budget limitations. In general, the Food 
Service Manager will be responsible for the establishment of all policies of and 
the direction of the food service aspect of the company. Currently there are 6 
employees who make up the kitchen staff of the company, all of whom report to 
the executive chef, who report to the Food Service Manager. 
The Petitioner states that it "believe[s] that for an individual to perform the functions of the Food 
Service Manager, given [its] plans, that a minimum of a bachelor's degree in Hospitality 
Management or related field [is required]." 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H -1 B. The 
Petitioner indicates that the proffered position corresponds to the occupational category "Food 
Service Managers"-SOC (ONET/OES Code) 11-9051 , at a Level I (entry level) wage. 
In response to the NOIR , the Petitioner provided a more detailed description of the duties and the 
time spent on each duty, as seen below: 
1 
DUTIES OF FOOD SERVICE MANAGERL 
- As set out on H Support Letter 
- Fully explained duty 
Coordinate food service activities of the restaurant, catering 
service and establishment of.food servic es at additional location s. 
Coordinate and run the daily food service operations of the 
restaurant to provide high quality service to the customers . 
Establish the necessary policies related for that service. Be 
involved in the expansion of the business ; "take-out & delivery" , 
"catering" (such as bar & bat mitzvahs , wedding showers, baby 
showers, graduations birthdays, anniversaries), "establishment of 
new locations" (one in downtown with other two in 
suburbs i.e. and 1. Monitor receipts vs. sales 
records and deposits. Make sure regulations, laws, health and 
% Of 
Daily 
Time 
40% 
1 In the NOIR, the Director questioned whether or not the Beneficiar y was performing the duties described above . In 
response , the Petitioner provided evidence , including but not limited to, invoices , hiring documents , letters from 
coworkers, and affidavits from the Beneficiary and the Petitioner's owner, that establish that the Beneficiary is in fact 
performing the duties described above in the course of her employment. Therefore , our analysis will be based on the 
duties as they are described in the original petition and the NOlR response. 
2 Emphasis removed from original text. 
Matter of U-T-&C-, Inc. 
safety standards are obeyed. Handle variety of administrative 
assignments such as employee records, payroll, taxes, license and 
insurance, etc. Utilize internet for research, marketing, hiring, 
training, and buying. Coordinate with accountant, CPA and food 
consultants. 
Estimate food and beverage costs and purchase supplies. 20% 
Prepare food service budgets (actual and projected). Monitor and 
review food service budget. Conduct research to find reliable 
suppliers. Make cost analysis. Estimate food and beverage costs. 
Oversee the inventory. Be involved m financing terms & 
arrangements. Meet the representatives of restaurant supply 
compames. Order food items, supplies and equipment (some gross 
volumes produce: $75,000/yr, meat: $50,000/yr, fish $25,000/yr, 
dairy products, soup, beverage: $75,000/yr, paper products 
$30,000/yr, imported ethnic food: $30,000/yr, supplies: $40,000/yr, 
tea-coffee-soda: $25,000). Monitor deliveries, inspect quality. 
Maintain purchasing records. 
Confer with food preparation and other personnel to plan menus 15% 
for the various operations and the policies to be followed by food 
service personnel. 
Be involved in menu planning & development in accordance with 
the cuisine and high end fine dining standards. Determine food­
labor-overhead costs and menu pricing. Monitor food preparation 
procedures. Coordinate with the executive chef and food 
consultants 
Direct hiring and assignment of personnel. 10% 
Hiring, training, and replacing the employees: establish standards 
for personnel performance and customer service. Monitor 
employee performance and training. Assign duties and schedule 
hours. Coordinate hiring & assignment of kitchen personnel with 
executive chef. Make recruitment plans to meet employee needs in 
the near future (such as 4 managers and assistant managers, 4 chefs, 
6 cooking personnel, 1 0 dining room and counter service 
personnel) in parallel to company's growth plans (2 more locations 
in 5 years, catering, dinner expansion, Sunday brunches, take-out & 
delivery business). Confer with top management and coordinate. 
Investigate and resolve food quality and service complaints. 15% 
Ensure customers are satisfied. Handle customer relations properly 
with high standards. Investigate and resolve customer complaints 
regarding food quality or service. Be a good communicator. Be 
flexible, respectful and show self-confidence. 
(Verbatim.) 
Matter of U-T-&C-, Inc. 
C. Analysis 
A baccalaureate or higher degree in a spectfic specialty, or its equivalent, is 
normally the minimum requirementfor entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
USCIS recognizes 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 that it addresses.3 The Petitioner asserted in the LCA that the proffered 
position falls under the occupational category "Food Service Manager." We reviewed the section of 
the Handbook regarding this occupational category, including the section entitled "How to Become 
a Food Service Manager," which states the following: 
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 a4-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. 
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. 
3 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
Q 
(b)(6)
Matter of U-T-&C-, Inc. 
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. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 Edition, 
Food Service Managers , on the Internet at http://www.bls.gov/ooh/m anagement/food-service­
managers.htm (last visited Sept. 29, 2015). 
The Handbook does not state that a baccalaureate or higher degree, in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the proffered position. In fact, the 
Handbook specifically states that "a bachelor' s degree is not required," and that for "most 
applicants," a high school diploma is sufficient for entry into the occupation. 
The Petitioner highlights the Handbook's statements regarding "upscale" restaurants and hotels, and 
claims to be such an organization. However, we do not find the Petitioner's assertions persuasive , 
as the Handbook states only that "some postsecondary education" is "increasingly preferred" by 
such institutions. The Handbook does not specify that the phrase "some postsecondary education" 
necessarily connotes a bachelor 's degree in a specific specialty or the equivalent and, given that the 
sentence highlighted by the Petitioner begins with the phrase "[a]lthough a bachelor's degree is not 
required," we decline to reach that conclusion. In any event, an increasing preference for "some 
[(unspecified)] postsecondary education" does not necessarily to a normal, minimum recruiting and 
hiring standard. Consequently, the Handbook 's statements regarding "upscale" restaurants and 
hotels afford 
the Petitioner no relief under this criterion. 
The record also contains a letter from Mr. . an instructor at 
who states that the proffered position is "complex and requires unique 
knowledge and skills that can only be obtained through a degree program in hospitality 
management or culinary arts or through equivalent experience." However, as discussed below we 
find that Mr. letter does not satisfy this criterion (or any of the remaining criteria to be 
discussed later in this decision). 
9 
(b)(6)
Matter of U-T-&C-, Inc. 
While Mr. claim to have performed some type of consulting and/or planning work for 
the Petitioner in the past is acknowledged, we find that he did not discuss the duties of the proffered 
position in any meaningful detail so as to provide any additional insight into the duties beyond the 
generalized duty-descriptions provided by the Petitioner. His letter is not accompanied by, and does 
not expressly state the full content of, the documentation and/or oral communications upon which 
his opinion was based. Given his near-verbatim repetition of the duties provided by the Petitioner 
to USCIS, Mr. knowledge of the actual position proffered here is not clear. 
Nor does Mr. discuss any studies, surveys, industry publications, authoritative 
publications, or other sources of empirical information which he may have consulted in the course 
of whatever evaluative process he followed. As a result, it is not apparent why his opinion should 
be afforded any deference over the DOL-provided information contained in the Handbook, which 
does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is normally 
required for positions located within the occupational category selected by the Petitioner on the 
LCA. 
Importantly, there is also no indication that the Petitioner advised Mr. that it 
characterized the proffered position as a low, entry-level food service position, for a beginning 
employee who has only a basic understanding of the occupation (as indicated by the wage-level on 
the LCA).4 We consider this a significant omission; without this information, the Petitioner has not 
demonstrated that Mr. . possessed the requisite information necessary to adequately assess 
the nature of the Petitioner's position and appropriately determine parallel positions based upon the 
job duties and responsibilities. 
We may, in our discretion, use as advisory opm10n statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
we are not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm'r 1988). 
It is incumbent upon the petitioner to provide persuasive evidence that the proffered position 
qualifies as a specialty occupation under this criterion, notwithstanding the absence of Handbook 
4 The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor (DOL) provides a 
description of the wage levels . A Levell wage rate is described by DOL as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic 
understanding of the occupation. These employees perform routine tasks that require limited, if any, 
exercise of judgment. The tasks provide experience and familiarization with the employer's methods, 
practices, and programs. The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific instructions on required 
tasks and results expected. Their work is closely monitored and reviewed for accuracy . Statements that the 
job offer is for a research fellow , a worker in training , or an internship are indicators that a Level 1 wage 
should 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.doleta.gov /pdf/ 
NPWHC_ Guidance_ Revised_11_2009.pdf. 
10 
Matter of U-T-&C-, Inc. 
support on the issue. The regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that "[a]n H-1B petition 
involving a specialty occupation shall be accompanied by [ d]ocumentation ... or any other required 
evidence sufficient to establish ... that the services the beneficiary is to perform are in a specialty 
occupation." Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). 
In the instant case, the Petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other authoritative source, indicates that 
normally the minimum requirement for entry is at least a bachelor's degree in a specific specialty, or 
its equivalent. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a spec?fzc 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 identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the Petitioner. 
In determining whether there is 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) reports a standard 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. Nor has the Petitioner submitted 
evidence that the industry's professional associations have made a bachelor's degree in a specific 
specialty, or the equivalent, a minimum requirement for entry. Nor does the record of proceeding 
contain any other evidence for our consideration under this prong. 
The Petitioner has not established 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 (1) in the 
Petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the Petitioner. For the reasons discussed above, the Petitioner has not satisfied the 
first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
1 1 
Matter of U-T-&C-, Inc. 
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 
spec?fic specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
On appeal, the Petitioner asserts that the nature of the Petitioner's business, as a "high-end full 
service restaurant," makes this proffered position unique. The Petitioner states, "[i]t is therefore 
imperative for the Petitioner to operate at a level equal to or above [our] competition for [us] to 
grow. As such, the position of Food Service Manager in this type of 'high-end' restaurant would 
require a Bachelor's degree which would normally be the minimum requirement for the position." 
However, the information provided in the record 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 normal is so 
complex or unique that it can be performed only by an individual with a degree." To begin, the 
record does not sufficiently develop relative complexity or uniqueness as an aspect of the proffered 
position of food service manager. Specifically, the Petitioner does not demonstrate how the food 
service manager duties described 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 position it claims is so unique. While a few 
courses in hospitality management may be beneficial in performing certain duties of a food service 
manager, the Petitioner has not demonstrated how an established curriculum of such courses leading 
to a baccalaureate or higher degree in a specific specialty or its equivalent is required to perform the 
duties of the particular position here proffered. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other food service manager positions such that it refutes the Handbook's information to the effect 
that there is a spectrum of education levels acceptable for food service manager positions. In other 
words, the record lacks sufficiently detailed information to distinguish the proffered position as 
unique from or more complex than a food service manager positon or other closely related positions 
that can be performed by persons without at least a bachelor's degree in a specific specialty or its 
equivalent. Consequently, as the Petitioner does not demonstrate how the proffered position of food 
service manager is so complex or unique relative to other food service manager positions 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 of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 5 Without further evidence, the record does not demonstrate that the proffered position 
5 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
12 
Matter of U-T-&C-, Inc. 
is complex or unique as such a position falling under this occupational category would likely be 
classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) position, 
requiring a significantly higher prevailing wage. For example, a Level IV (fully competent) 
position is designated by DOL for employees who "use advanced skills and diversified knowledge 
to solve unusual and complex problems. "6 The evidence of record does not establish that this 
position is significantly different from other positions in the occupational category such that it 
refutes the Handbook's information that a bachelor's degree in a specific specialty, or its equivalent 
is not required for the proffered position. 
The Petitioner did not establish that its particular position is so complex or unique that it can only 
be performed by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. The Petitioner has not 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 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
Petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a Petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a Petitioner may assert that 
a proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing 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 -1 B 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 
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) ofthe Act. 
6 For additional information regarding wage levels as defined by DOL, 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 
13 
Matter of U-T-&C-, Inc. 
statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the Act; 
8 e.F.R. § 214.2(h)(4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. users must examine the 
actual employment requirements, and, on the basis of that examination, determine whether the 
position qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. In 
this pursuit, the critical element is not the title of the position, or the fact that an employer has 
routinely insisted on certain educational standards, but whether performance of the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation as required by the Act. To interpret the regulations any other way would lead to 
absurd results: if users were constrained to recognize a specialty occupation merely because the 
petitioner has an established practice of demanding certain educational requirements for the 
proffered position - and without consideration of how a beneficiary is to be specifically employed -
then any alien with a bachelor's degree in a specific specialty could be brought into the United 
States to perform non-specialty occupations, so long as the employer required all such employees to 
have baccalaureate or higher degrees. See id. at 388. 
The Petitioner states that two individuals have previously held the position of food service manager. 
The Petitioner claims that the two individuals had a bachelor's degree in economics and a bachelor's 
degree in hospitality management, respectively. First, the fact that the Petitioner would find 
acceptable individuals with degrees in the disparate fields of economics and hospitality 
management undermines any claim that the proffered position requires an individual with a 
bachelor's degree in a specific specialty, or the equivalent. Further, the record indicates that one of 
those two individuals was the Petitioner's owner who, as the owner of the establishment, 
presumably performed duties requiring her to exercise independent judgement. As noted, by virtue 
of the wage-level it selected on the LeA, the Petitioner indicated that the Beneficiary is only 
expected to possess a basic understanding of the occupation and will perform routine tasks that 
require limited, if any, exercise of judgment. It is therefore unclear whether the position occupied 
by that individual was the same one proposed here. While the other individual did apparently 
possess a bachelor's degree in hospitality management, one previous hire for a 12-employee 
business in existence since 1998 does not constitute the type of recruiting and hiring history 
necessary for analysis under this criterion. 
The record does not establish that the Petitioner normally requires a bachelor's degree in a specific 
specialty, or its equivalent, for the proffered position and that performance of the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge. 
Therefore, the Petitioner has not satisfied the third criterion of8 e.F.R. § 214.2(h)(4)(iii)(A). 
The nature of the spectfic duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree in a spec(fic specialty, or its equivalent 
The fourth criterion at 8 e.F.R. § 214.2(h)(4)(iii)(A) requires a Petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
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(b)(6)
Matter of U-T-&C-, Inc. 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner claims, through the assertions made in the letter from Mr. that the nature 
of the specific duties of the position in the context of its business operations is so specialized and 
complex that the knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent. We have reviewed and 
evaluated the Petitioner's statements regarding the proffered position and its business operations in 
light of this criterion. The relative specialization and complexity have not been sufficiently 
developed by the Petitioner as an aspect of the proffered position. That is, the proposed duties have 
not been described with sufficient specificity to establish that they are more specialized and 
complex than positions that are not usually associated with at least a bachelor's degree in a specific 
specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the lowest 
of four assignable wage-levels) relative to others within the occupational category. Without more, 
the position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the Petitioner's has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classifiedat a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 7 
The Petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. Thus, 
the Petitioner has not established that the nature of the specific duties of the proffered position is so 
specialized and complex that the knowledge required to perform the duties is usually associated 
with the attainment of a baccalaureate or higher degree in a specific specialty, or its 
equivalent. We, therefore, conclude that the Petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied 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 as a specialty occupation. 
Based upon a complete review of the record of proceeding, the Petitioner has not overcome the 
grounds upon which approval of this petition was revoked. 8 Accordingly, the appeal is dismissed. 
The approval of the petition remains revoked. 
7 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
8 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). However, as 
the appeal is dismissed, and the petition is revoked for the reasons discussed above, we will not further discuss the 
additional issues and deficiencies that we observe in the record of proceedings. 
15 
Matter of U-T-&C-, Inc. 
IV. CONCLUSION AND ORDER 
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. 
Cite as Matter ofU-T-&C-, Inc., ID# 13671 (AAO Oct. 7, 2015) 
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