dismissed H-1B Case: Hospitality

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-I- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129,PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an owner and operator of an eight-employee hoteL seeks to temporarily employ the 
Beneficiary as a business development specialist under the H-1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily employ 
a qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded the Petitioner 
did not establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter ofS-1- Inc. 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "business development 
specialist." In response to the Director's request for evidence (RFE), the Petitioner provided the 
following job duties for the position: 
1. Research and gather business data (20%) 
In performing this job duty, the Business Development Specialist (hereinafter 
"Specialist") will focus to identify and target opportunities to expand the scope of 
business. Develop a plan to reach sales goals and conduct client presentations and 
meetings. 
The Company is in the process of expansion of its business and customers ... 
2. Coordinate with marketing, operations, and customer services in updating 
marketing materials (25%) 
In performing this job duty, the specialist will work with the management staff to 
promote and advertise the hotel customers both in the United States, China, and other 
countries. The competitive nature of hotel business is in great need of the Specialist 
to enhance the continuing growth of the hotel. 
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Matter qf S-1- Inc. 
3. Develop and implement new business opportunities (15%) 
In performing this job duty, the Specialist shares responsibilities with the marketing 
team to handle the marketing strategy to significantly increase the use of the internet 
advertisements and different online popular platforms, such as Facebook, Yelp, 
Tripadvisors, etc., and maintain the up-to-date information on the hotel's website. 
4. Perform cost benefits analysis, develop sales forecasting model, and prepare 
targeted presentations (15%) 
In performing this job duty, the Specialist will research long-term development and 
expansion of the company including the combination of different projects and 
properties in connection with the hotel business. 
5. Construct and implement recommendations and projects to enhance 
operations, optimize sales, and increase potential customers (10%) 
In performing this job duty, the Specialist will develop and maintain internal and 
external sources to help generate new business. The specialist will provide 
recommendations to improve customer satisfaction, and work with the front desk staff 
to serve as a company face to provide the utmost services to customers and hotel 
guests. 
6. Design and maintain company's website (5%) 
This job duty is combined with the overall marketing and promoting strategy of the 
company and hotel business through the preliminary use of internet and website 
design and maintenance. 
7. Present periodical business reports to management (10%) 
This job duty requires the Specialist to prepare regular reports of business growth and 
present recommendations for the management to review. 
In its RFE response letter, the Petitioner stated that the position requires a bachelor's degree in 
business or marketing with information technology experience or a master's degree "in the specified 
fields of study." The Petitioner noted that this level of minimum education is the "normal industry 
standard" for the proffered position. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
3 
Matter ofS-1- Inc. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.' 
As a preliminary matter, we find that the evidence of the Petitioner's operations and the 
Beneficiary's stated duties undermines the Petitioner's assertion that the Beneficiary will be working 
primarily as a business development specialist. The Petitioner indicated on the Form 1-129 that it 
employs eight individuals, including a managing partner, a maintenance/logistics employee, a front 
desk manager, a front desk employee, an accountant/housekeeping manager, and three housekeepers. 
The Petitioner submitted documentation reflecting that the hotel is open from, at minimum, 8 am to 
9 pm daily, or for approximately 90 hours per week. This leaves question that the Petitioner has 
sufficient staffto operate the hotel and sustain the Beneficiary in his asserted position. For instance, 
the Petitioner indicates that it employs only one front desk employee despite being open for more 
than 90 hours a week. Further, the Beneficiary's duties indicate that he will share his responsibilities 
with a "marketing team," however its organizational chart includes no marketing employees and it 
has not articulated or documented the members of this referenced marketing team. The Petitioner 
has not resolved these inconsistencies with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). These discrepancies leaves 
significant question as to whether the Beneficiary will principally act as a business development 
specialist as asserted. 
In its appeal, the Petitioner contends that it has generated ne\v business amounting to approximately 
$10 million and states that the Director did not properly consider its recent growth and expansion. 
While we concur that USCIS should not limit its review to the size of a petitioner and must consider 
the actual responsibilities of the proffered position, we find that it is reasonable to assume that the 
size of an employer's business has or could have an impact on the claimed duties of a particular 
position. See EG Enters., Inc. v. Dep 't of Homeland Sec., 467 F. Supp. 2d 728 (E.D. Mich. 
2006). 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 actual duties of a particular position. 
In this matter, t4e Petitioner submits an organizational structure indicating insufficient staffing to 
operate the hotel and a duty description for the Beneficiary referencing employees it does not 
employ, namely, a supporting "marketing team." As such, a consideration of the Petitioner's 
staffing levels is probative. The Petitioner states we should consider its recent development, 
suggesting that the company was not yet properly developed to support the Beneficiary's proffered 
role as of the date of the petition. The Petitioner states that it has upwards of $10 million in new 
revenue, but provides no supporting documentation to substantiate this assertion. In lieu of direct 
evidence, the Petitioner provides evidence that the managing partner of the Petitioner has made 
purchase offers on a few properties. However, this evidence does not demonstrate an increase in the 
company's operations as of the date of the petition. In short, the evidence and assertions of the 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
4 
Matter o.fS-1- Inc. 
Petitioner appear to indicate that it has not developed sufficiently as of the date of the petition to 
support the Beneficiary's proffered position. The Petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition and must continue to be eligible for the benefit through 
adjudication. 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved at a future date after the 
Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
While no provision in the law for specialty occupations permits the performance of non-qualifying 
duties, we will view the performance of duties that are incidental2 to the primary duties of the 
proffered position as acceptable when they are unpredictable, intermittent, and of a minor 
nature. Anything beyond such incidental duties, however, e.g., predictable, recurring, and 
substantive job responsibilities, must be specialty occupation duties or the proffered position as a 
whole cannot be approved as a specialty occupation. 
Further, the Petitioner's claim that a bachelor's degree in business is a suflicient m1mmum 
requirement for entry into the protTered 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 or business 
administration, without further specification, does not establish the position as a specialty 
occupation. C.f Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)( 1) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.F.R. § 
214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
position. Although a general-purpose bachelor's degree, such as a degree in business or business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam, 484 F.3d at 147.3 
2 The two definitions of "incidental" in Webster's New College Dictionary are "1. Occurring or apt to occur as an 
unpredictable or minor concomitant ... [and] 2. Of a minor, casual, or subordinate nature .... " Incidental, Webster's 
New College Dictionmy (3rd ed. 2008). 
3 Specifically, the judge explained in Royal Siam that: 
The courts and the agency consistently have stated that, although a general-purpose bachelor's degree, 
such as a business administration degree, may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify the granting of a petition for an H-1 B specialty 
occupation visa. See, e.g., Tapis lnt'l v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); .%anti, 36 F. 
Supp. 2d at 1164-66; cf Matter a,( Michael Hertz Assocs., 191 & &N Dec. 558,560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
5 
Matter of S-1- Inc. 
Again, the Petitioner in this matter claims that the duties of the protiered position can be performed 
by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business. 
Without more, this assertion alone indicates that the protiered position is not in fact a specialty 
occupation. The Director's decision must therefore be affirmed and the appeal dismissed on this 
basis alone. 
Moreover, it also cannot be found that the proffered position is a specialty occupation because the 
Petitioner has not satisfied any of the supplemental, additional criteria at 8 C.F .R. 
§ 214.2(h)( 4)(iii)(A). 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.4 
On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "Business Operations Specialists, 
All Other" corresponding to the Standard Occupational Classification code 13-1199. We reviewed 
the information in the Handbook regarding the occupational category "Business Operations 
Specialists, All Other" and note that this occupation is one for which the Handbook does not provide 
detailed data. More specifically, the Handbook does not provide the typical duties and 
responsibilities for this category. Moreover, the Handbook does not provide any information 
regarding the academic and/or professional requirements for these positions. The Handbook states 
the following about these occupations: 
Data for Occupations Not Covered in Detail 
Although employment for hundreds of occupations IS covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 
Matter ofS-1- Inc. 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation, the Occupational Information 
Network (O*NET) code, the occupational definition, 2014 employment, the May 
2015 median annual wage, the projected employment change and growth rate from 
2014 to 2024, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., Data 
for Occupations Not Covered in Detail, http://www.bls.gov/ooh/About/Data-for-Occupations-Not­
Covered-in-Detail.htm (last visited Dec. 28, 2016). 
Thus, the narrative of the Handbook reports that there are some occupations for which only summary 
data is prepared but detailed occupational profiles are not developed. It appears that for at least 
some of the occupations, little meaningful information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. 5 When the Handbook does not 
support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the Petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies this or one of the other three 
criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it is the 
Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, 
authoritative sources) that supports a finding that the particular position in question qualities as a 
5 While the Handbook is not determinative in this matter, we nevertheless note that the Handbook does not indicate that 
"Business Operations Specialists, All Other" comprise an occupational group for which normally the minimum 
requirement for entry is at least a bachelor's degree in a specific specialty, or its equivalent. The full text of the 
Handbook regarding this occupational category is as follows: 
All business operations specialists not listed separately. 
• 2014 employment: 998,000 
• May 2015 median annual wage: $68,170 
• Projected employment change, 2014-24: 
Number of new jobs: 48,000 
Growth rate: 5 percent (As fast as average) 
• Education and training: 
Typical entry-level education: Bachelor's degree 
Work experience in a related occupation: None 
Typical on-the-job training: None 
• O*NET: 
_ 13-1199.00- Business Operations Specialists, All Other 
13-1199.01- Energy Auditors 
13-1199.02 - Security Management Specialists 
13-1 199.03 - Customs Brokers 
13-1199.04- Business Continuity Planners 
13-1199.05 - Sustainability Specialists 
13-1199.06- Online Merchants 
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(b)(6)
Matter ofS-1- Inc. 
specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position 
qualifies as a specialty occupation. 
The Petitioner asserted in response to the Director's RFE that the most similar Handbook 
occupational category is "Operations Research Analysts. "6 Even if the proffered position were 
established as being that of an operations research analyst , a review of the Handbook does not 
indicate that, as a category, such a position qualifies as a specialty occupation in that the Handbook 
does not state a normal minimum requirement of a U.S. bachelor ' s or higher degree in a specific 
specialty or its equivalent for entry into the occupation of operations research analyst. The 
information on the educational requirements in the "Operations Research Analysts" chapter of the 
Handbook does not report that an operations research analyst requires at least a bachelor's degree in 
a specific specialty or its eq~ivalent. U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational 
Outlook Handbook , 2016-17 ed., Operations Research Analyst , 
https://www.bls.gov /ooh/math /print/operations-research-analysts.htm (last visited Dec. 28, 2016). It 
indicates that a bachelor's degree in a variety of fields is acceptable for entry-level positions. /d. 
Thus, the Handbook is not probative evidence of the occupational category "Operations Research 
Analysts" being a specialty occupation. 
In this 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. The record lacks sufficient evidence to support a finding that the particular position 
proffered here, a business operations specialist position (as indicated on the LCA), would normally 
have such a minimum , specialty degree requirement or its equivalent. The duties and requirements 
of the position as described in the record of proceeding do not indicate that this particular position 
6 The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner cannot offer a new position to the 
Beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy , its 
associated job responsibilities , or the requirements of the position. The Petitioner must establish that the position offered 
to the Beneficiary when the petition was filed merits classification for the benefit sought. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248, 249 (Reg ' l Comm ' r 1978). If significant changes are made to the initial request for approval , 
the Petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in the 
record. If the Petitioner 's response to the RFE was an attempt to change the occupational category of the proffered 
position, then the Petitioner should have filed a new petition . We note again that the Petitioner designated the proffered 
position under the occupational category "Business Operations Specialists, All Other" corresponding to the Stand ard 
Occupational Classification code 13-1199 at a Level II wage on the LCA. A Level II wage in for a 
"Business Operations Specialist" at the time the LCA was certified was $62,442 per year while a Level II wage for an 
"Operations Research Analyst" (SOC Code 15)031) required a higher minimum wage of $69,576 per year. For more 
information regarding the wages for "Business Operations Specialists , All Other" and "Operations Research Analysts" in 
· California MSA, for the period 7/2015 6/2016 , see 
http://tlcdatacenter.com /OesQuickResults.aspx?code= 13-1199&area= &year = 16&source = I and 
http ://tlcdatacenter.com /OesQuickResults .aspx?code = 15-2031 &area= &year = 16&source = I (last visited Dec. 28, 
2016). 
8 
Matter ofS-I- Inc. 
proffered by the Petitioner is one for which a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the allernative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 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. 
As stated earlier, 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 (0. 
Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here, as previously discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative sources) reports an industry-wide requirement 
for at least a bachelor's degree in a specitic specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional associations indicating that they have made a bachelor's degree in a specific specialty a 
minimum entry requirement. Furthermore, the Petitioner did not submit any letters or affidavits 
from similar firms or individuals in the Petitioner's industry attesting that such firms "routinely 
employ and recruit only degreed individuals." 
In support of its assertion that a bachelor's degree in a specific specialty is common to the proffered 
position in parallel positions among similar organizations, the Petitioner submitted copies of five 
advertisements for business development specialists. However, two of these postings provide no 
minimum educational requirements. Further, the three others set forth varying minimum educational 
9 
Matter ofS-1- Inc. 
requirements respectively, including "an undergraduate degree with [an] excellent academic record," a 
"BA/BS in Business Hospitality Management," and "a Business/Marketing discipline or equivalent 
experience." 
As such, only three of the advertisements provided indicate that a bachelor's degree is required, but 
not a bachelor's degree in a specific specialty, or its equivalent. For instance, the three position 
advertisements requiring a degree state that qualified applicants could hold bachelor's degrees in 
business, marketing, or business hospitality management, or have a general bachelor's degree. As 
noted, a general degree, or a degree of general applicability, such as a degree in business or business 
administration, does not establish a position as a specialty occupation. users has consistently 
stated that, although a general-purpose bachelor's degree, such as a degree in business or business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam, 484 F.3d at 147. 
In addition, even if all of the job postings indicated that a bachelor's or higher degree in a specific 
specialty, or its equivalent, was required, the Petitioner has not established that the submitted 
advertisements are relevant, or parallel positions in similar organizations in the same industry. 
Indeed, as noted by the Director, the five postings are with relatively large companies in comparison 
to the Petitioner and operate in varying industries such as software, staffing, food service, and real 
estate. Further, even if the job announcements suppmied the finding that the position requires a 
bachelor's or higher degree in a specific specialty, or its equivalent, it cannot be found that such a 
limited number of postings that appear to have been consciously demonstrate that such a position 
normally requires at least a baccalaureate degree in a specific specialty, or its equivalent, for entry 
into the occupation in the United States. 7 Thus, the Petitioner has not satisfied the first alternative 
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
7 According to the Handbook's detailed statistics on business operations specialists, there were approximately 364,4 I 0 
persons employed as business operations specialists, all other, in 2014. Handbook, 2016-17 ed., 
https://www.bls.gov/oes/current/oes 131199.htm (last visited Dec. 28, 20 16). Based on the size of this relevant study 
population, the Petitioner does not demonstrate what statistically valid inferences, if any, can be drawn from just five job 
postings with regard to the common educational requirements for entry into parallel positions in similar organizations in 
the hotel industry. See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). Moreover, given 
that there is no indication that the advertisements were randomly selected, the validity of any such inferences could not 
be accurately determined even if the sampling unit were sufficiently large. See id. at 195-96 (explaining that "[r]andom 
selection is the key to .[the] process [of probability sampling]" and that "random selection offers access to the body of 
probability theory, which provides the basis for estimates of population parameters and estimates of error"). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher degree in 
a specific specialty, or its equivalent (for organizations in the same industry that are similar to the Petitioner), it cannot 
be found that such a limited number of postings that appear to have been consciously selected could credibly refute the 
findings of the Handbook published by the Bureau of Labor Statistics that such a position does not normally require at 
least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. 
10 
Matter ofS-1- Inc. 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In its appeal, the Petitioner again refers to the occupational category of operations research analysts 
and notes that the Handbook states that these positions require the use of "advanced mathematics 
and analytical methods" and handling "complex issues." To begin with and as discussed previously, 
the Petitioner cannot offer a new position to the Beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, its associated job responsibilities, or the 
requirements of the position. 
Furthermore, the record does not sufficiently develop relative complexity or uniqueness as an aspect 
of the proffered position of a business operations specialist. The Petitioner does not demonstrate 
how the duties of the business development analyst 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 it claims are so complex and unique. 
While a few related courses may be beneficial in performing certain duties of the position, the 
Petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. 
The evidence of record does not establish that this position is significantly different from other 
business operations specialist positions. In other words, the record lacks sufficiently detailed 
information to distinguish the proffered position as unique from or more complex than other 
business operations specialists 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. Where, as here, the 
record of proceeding indicates that the proffered position does not qualify as a specialty occupation 
simply by virtue of its occupational classification, the Petitioner must establish why the proffered 
position does qualify as a specialty occupation in contrast to other positions falling under the 
occupational classification. Under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), this inherently 
requires a comparison of the level of uniqueness and complexity of the duties of the proffered 
position against that of other business development specialists. The Petitioner suggests that the 
Beneficiary will utilize mathematics, analytical techniques, and solve complex issues, but it does not 
corroborate this contention by explaining these techniques in detail or the complex issues he will 
solve. 
Indeed, the Petitioner submitted an LCA designating the proffered position at a Level II wage 
indicating that, relative to other positions located within the "Business Operations Specialists, All 
11 
Matter ofS-1- Inc. 
Other" occupational category, the Beneficiary would perform only moderately complex tasks 
requiring only limited judgment. Without further evidence, the evidence does not demonstrate that 
the proffered position 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.8 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." 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 claims that the Beneficiary is well-qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordin-gly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
Here, the Petitioner does not submit any evidence of previous or current employees in the same 
position as the Beneficiary's proffered position. As such, the Petitioner does not submit probative 
evidence that demonstrates the academic qualifications of individuals previously or currently 
employed in a similar administrative services coordinator position. 
In addition, it is noteworthy to mention that the Petitioner has not specified a particular bachelor's 
degree in a specific specialty required for the position, but only a business or marketing degree with 
information technology experience or a master's degree "in the specified fields of study." As noted 
above, a degree with a generalized title, such as business or business administration, without further 
8 The issue here is that the Petitioner's designation of this position as a Level II position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions tvithin the same 
occupation. Nevertheless, it is important to note that a Level II wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a position 
would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, 
however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that 
higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty or its 
equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a determination 
of whether a proffered position meets the requirements of section 214(i)( l) of the Act. 
12 
Matter o.fS-1- Inc. 
specification, is not a degree in a specific specialty. Cf1\1atter of Michael Hertz Assocs., 19 l&N 
Dec. 558 (Comm'r 1988). 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
For reasons similar to those that we discussed under the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), we find that the record does not sufficiently develop relative specialization 
or complexity as an aspect of the proffered position. We refer to our earlier comments and findings 
with regard to the implication of the Petitioner's designation of the pro tiered position in the LCA as a 
Level II wage, and hence one not likely distinguishable by relatively specialized anp complex duties. 
We have also reviewed the Petitioner's description of duties for the proffered position, including the 
Petitioner's expanded descriptions submitted in response to the Director's RFE. While we understand 
that the Beneficiary may have certain knowledge which would assist him in performing the duties of the 
position, the Petitioner has not sufficiently explained how these duties require the theoretical and 
practical application of a body of highly specialized knowledge, and the 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. 
Further, the Petitioner states that the Director ignored a submitted expert opinion from a foreign 
credential evaluation expert; however, the opinion makes no statements regarding the relative 
complexity or specialized nature of the proffered position, nor does its duties. As such, we do not find 
the Petitioner's reference to this opinion convincing in demonstrating the specialized or complex nature 
of the position. 
\ 
Upon review of the totality of the record, the Petitioner has not demonstrated in the record that its 
proffered position is one with duties sufficiently specialized and complex to satisfY 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualitl.es as a specialty occupation. 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; Matler of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
13 
Matter o.fS-1-Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-1- Inc., ID# 201844 (AAO Dec. 29, 2016) 
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