dismissed H-1B Case: Hospitality Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-H- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 10.2016 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a hotel. seeks to temporarily employ the Beneficiary as a ··hotel manager·· 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-lB 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 tor entry into the position. 
The Director, Vermont Service Center. denied the pet1t10n. The Director concluded that the 
Petitioner did not establish (1) that the proffered position qualifies as a specialty occupation: and (2) 
that the Beneficiary is qualified to perform services in a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal. the Petitioner asserts that the Director erred in 
finding that (1) the profTered position is not a specialty occupation: and (2) that the Beneficiary does 
not possess the equivalent of a U.S. bachelor's degree in a field related to the duties ofthe position. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). defines the tenn .. 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. 
(b)(6)
Matter of L-H- LLC 
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: 
{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. Cher{(?{f; 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. Afeissner, 201 f.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-IB petition, the Petitioner stated that the Beneficiary will serve as a '·hotel manager.'' 1 In 
the letter of support, the Petitioner provided the Beneficiary's job duties in the proffered position. In 
1 On the Form 1-129, the Petitioner stated that the Beneficiary would work at its corporate otTtce in 
Pennsylvania. However, in the labor condition application (LCA), the Petitioner stated that the Beneficiary's place of 
employment would be at Pennsylvania In response to the RFE, the Petitioner 
stated that the Beneficiary would work at both locations. It must be noted that the instructions to the LCA (ETA Form 
9035 & 9035E) states the following: 
It is important for the employer to define the place of intended employment with as much geographic 
specificity as possible. The place of employment address listed ... must be a physical location and 
cannot be a P.O. Box. The employer may use this section to identifY up to three (3) physical locations 
and corresponding prevailing wages covering each location where work will be performed and the 
electronic system will accept up to 3 physical locations and prevailing wage information. 
Thus, the instructions require that the employer list the place of intended employment "with as much geographic 
specificity as possible·· and, further notes that the employer may identify up to three physical locations. including street 
address, city, county. state, and zip code, where work will be performed. Additionally, the U.S. Department of Labor 
2 
(b)(6)
Matter of L-H- LLC 
response to the Director's request for evidence (RFE). the Petitioner changed the job title to '·general 
manager"' and expanded the Beneficiary's job duties. Specifically, the Petitioner provided the 
following job duties for the position (verbatim): 
With the assistant of who will continue to supervise the staff and deal 
with day to day work assignments and resolve minor problems. reporting to the 
general manager as well as the assistance of our accountant the general 
manager will perform a full range of managerial duties. He will be responsible for 
reviewing and approving personnel hires, make final decisions on compensation and 
promotion. set policy on salaries and benefits and insure compliance with payroll tax 
reporting and local, state and federal labor laws and regulations. He will also set 
service standards for our hotel in compliance with the standards of [the Petitioner] 
and assure that the enterprise meets all performance and reporting requirement under 
the franchise agreement. He will review and negotiate contract proposals fi·om 
vendors of services including utilities such as telephone. Internet, cable and satellite 
television. and choose among providers based on cost and quality of their services. 
He will arrange for the maintenance of adequate property, casualty and liability 
insurance based on amount of coverage, rating of the insurer and terms of the 
insurance contracts proposed which he will review and evaluate. 
He will review and approve contracts for services such as linen, pool maintenance 
and carting. food and beverage supply for the restaurant and bar facilities. He will 
review and approve contracts for banquet and conference services. When major 
repairs or replacements of equipment or renovation of facilities are required he will 
solicit and review bids, choose architects and/or interior designers and construction 
contractors , negotiate such contracts and monitor the progress of such work as well as 
arrange and negotiate financing for same. 
With the assistance of he will develop budgets , financial projections, 
cost control systems and set room rates and implement promotions and public 
relations eflorts to maximize occupancy and receipts. He will maintain relations with 
our banks and other sources of financing and assure that proper reporting of income. 
assets and liabilities are made as may be required by creditors or [the Petitioner]. He 
will review all reports required by tax or other authorities and assure that all taxes are 
paid and all regulations are complied with. 
(DOL) regulations state that ·'[e]ach LCA shall state ... {t}he places (}l intended employment."" 20 C.F.R. 
§ 655.730(c)(4) (empha sis added). 
Further , with certain limited exceptions . the applicable DOL regulations define the term ·'place of emplo yment'' a s the 
worksite or physical location where the work actually is performed by the H-1 B nonimmigrant. See 20 C.F.R. 
§ 655.715. 
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Matter of L-H- LLC 
On appeal, the Petitioner states that the position requires a bachelor's degree in hotel or hospitality 
management, or its equivalent. 
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 satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A) and, therefore. qualities as a specialty occupation. 2 Specifically. the record (1) 
provides inconsistent information regarding the position3: and (2) does not establish that the job 
duties require an educational background, or its equivalent. commensurate with a specialty 
occupation . ..l 
A. First Criterion 
We now tum to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 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 DOL's Occupational 
Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses. 5 
On the LCA submitted in support of the H-1 B petition. the Petitioner designated the proffered 
position under the occupational category ''Lodging Managers" corresponding to the Standard 
Occupational Classification code 11-9081 at a Level II wage rate. 6 
~Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
' The purpose of an RFE is to provide a petitioner with an opportunity to clarify 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 materially change a 
position's title, its level of authority within the organizational hierarchy, or the associated job responsibilities. Rather, 
the Petitioner must establish that the position offered to the Beneficiary when the petition was tiled merits classification 
for the benefit sought. See Matter (?/'Michelin Tire Cmp., 17 I&N Dec. 248, 249 (Reg"! Comm"r 1978). If significant 
changes are made. the Petitioner must file a new petition rather than seek approval of a petition that is not supported by 
the facts in the record. Here, in response to the RFE. the Petitioner changed the Beneficiary's job title and expanded the 
Beneficiary's job duties, adding such items as: (I) developing budgets, financial projections. and cost control systems: 
(2) implementing promotions and public relations efforts: (3) maintaining relations with banks and other sources of 
financing and assuring that proper reporting of income, assets. and liabilities are made: and (4) reviewing all reports 
required by tax or other authorities. 
~ The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position. While we may not discuss every document submitted, we have reviewed and considered each one. 
5 
All of our references are to the 2016-2017 edition of the Handhook. which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Ham/hook 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 USCIS regularly reviews the Ham/hook 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 
The ""Prevailing Wage Detennination Policy Guidance" issued by the DOL provides a description of the wage levels. 
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Matter (?f L-H- LLC 
According to DOL guidance, a Level II wage rate is appropriate for a position that involves 
moderately complex tasks that require limited judgment. An indication that a Level II would be 
appropriate is when the proffered position requires the years of education and/or experience that are 
described in the Occupational Information Network (O*NET) Job Zones. The occupational category 
'·Lodging Managers:' has been assigned an O*NET Job Zone 3, which groups it among occupations 
for which medium preparation is needed. More specifically. most occupations in this zone ··require 
training in vocational schools, related on-the-job experience. or an associate's degree.'' See O*NET 
OnLine Help Center, at http://www.onetonline.org/help/ online/zones, for a discussion of Job 
Zone 3. Therefore. the designation of the proffered position at a Level II on the LCA suggests that 
the Petitioner's requirements for the proffered position would equate to training in a vocational 
school. related on-the-job experience, or an associate· s degree. 
Turning to the Handbook. we note that the chapter on "Lodging Managers" begins by stating that a 
high school diploma or equivalent is the typical entry-level education for these positions. 7 The 
subchapter entitled ''How to Become a Lodging Manager" further clarifies: "Many applicants can 
qualify as a lodging manager by having a high school diploma and several years of experience 
working in a hotel... !d. While the Handbook states that "most large, full-service hotels require 
applicants to have a bachelor's degree," it further clarities that "[a]t hotels that provide fewer 
services, candidates with an associate's degree or certificate in hotel. restaurant. or hospitality 
management may qualify for a job as a lodging manager... !d. It also reports: "Most full-service 
hotel chains prefer candidates with a degree in hospitality or hotel management. .. !d. 
The Handbook does not support the Petitioner's assertion that a bachelor's degree in hotel or 
hospitality management is required for entry into this occupation. Rather. the Handbook states that a 
high school diploma. an associate's degree. a certificate. or a baccalaureate may be suf1icient for 
entry into lodging manager positions. 
In response to the RFE. the Petitioner submitted printouts from the websites work.chron.com and 
learn.org regarding lodging managers. However. similar to the Handbook, the printouts report that a 
high school diploma. an associate's degree, a certificate, or a baccalaureate may be sufficient tor 
entry. 
The Handbook docs not indicate that there are any degree requirements for these jobs. Moreover. 
the Petitioner has not provided documentation from another probative source to substantiate its 
U.S. Dep't of Labor, Emp't & Training Admin .. Prerailing Wage Determination Policy Guidance. Nonagric. 
Immigration Programs (rev. Nov. 2009). available at 
http://tlcdatacenter.comidownloadlNPWHC _Guidance Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience. education. and skill 
requirements of the Petitioner's job opportunity. ld The Petitioner classified the proffered position at a Level II wage. 
We will consider this selection in our analysis of the position. 
7 For additional information regarding the occupational category "Lodging Managers,'' see U.S. Dep't of Labor. Bureau 
of Labor Statistics. Occupational Outlook Handbook. 2016-17 ed., Lodging Managers, 
http:llwww.bls.govioohimanagement/print/lodging-managers.htm (last visited May 2. 20 16). 
5 
Matter of L-H- LLC 
assertion regarding the mmtmum requirement for entry into this particular position. Thus. the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
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 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[.r 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. 
I. 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. 
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 \vhether 
letters or affidavits from firms or individuals in the industry attest that such firms .. routinely employ 
and recruit only degreed individuals." See .%anti. 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 authoritative source. reports a requirement for at least a bachelor's degree in 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore. the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms "'routinely employ and recruit only dcgrccd individuals." 
In support of the assertion that the pro tiered position is a specialty occupation under this criterion of 
the regulations, the Petitioner submitted documentation regarding H-1 B petitions filed by two other 
employers. Notably, the documentation does not indicate the total number of employees currently or 
in the past employed in the positions by these employers. Accordingly, it cannot be determined how 
representative the documentation for one individual at each place of employment is of the 
employers· actual hiring practices. 8 
8 We are not required to approve applications or petitions where eligibility has not been demonstrated. merely because of 
prior approvals that may have been erroneous. See, e.g, Matter of Church Scientology Int '/. 19 I&N Dec. 593, 597 
(Comm 'r 1988). If the previous nonimmigrant petitions were approved based on the same description of duties and 
6 
Matter of L-H- LLC 
Furthermore, the documentation docs not provide the job duties and day-to-day responsibilities of 
these individuals. For instance, the documentation does not include evidence regarding the 
complexity of the job duties, supervisory duties (if any), independent judgment required or the 
amount of supervision received. Accordingly, it is unclear whether these individuals' duties and 
responsibilities are the same as the proffered position. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty. or its equivalent, is common to the industry in parallel positions 
among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 
C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.P.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 support of its assertion that the proffered position qualifies as a specialty occupation. the 
Petitioner described the proffered position and its business operations. In response to the RFE and 
on appeal, the Petitioner asserts that the proffered position includes complex responsibilities and 
duties. However. the Petitioner has not sutliciently developed relative complexity or uniqueness as 
an aspect of the proffered position. Again. it appears that the Petitioner expects the Beneficiary to 
perform moderately complex tasks that require limited exercise of judgment (by its selection of a 
Level II wage on the LCA) compared to other positions within the same occupation.
9 
The 
description of the duties provided by the Petitioner does not specifically identify any tasks that are so 
complex or unique that only a specifically degreed individual could perform them and does not 
refute the Handbook's statement that a high school diploma is sufficient. 
Accordingly, the Petitioner has not submitted sufficient evidence to satisfy the second alternative 
prong of8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
assertions that are contained in the current record, they would constitute material and gross error on the part of the 
Director. It would be ·'absurd to suggest that [USCIS] or any agency must treat acknowledged errors as binding 
precedent." Sussex Eng 'g, Ltd. v. Afontgonlel)', 825 F.2d I 084, I 090 (6th Cir. 1987). 
9 
Nevertheless, a low wage-designation does not preclude a proffered position from classification as a specialty 
occupation, just as a high wage-designation does not definitively establish such a classification. In certain occupations 
(e.g .. doctors or lawyers), a Level II 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 relevant factor but 
is not itself conclusive evidence that a proffered position meets the requirements of section 214(i}( I) of the Act. 
Matter ofL-H- LLC 
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, tor the position. 
On appeal, the Petitioner states that it ·'is not claiming that it has met this particular criterion because 
the specific position is new." 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. 
The Petitioner claims 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. However, relative specialization and complexity have not been sufficiently developed 
by the Petitioner as an aspect of the proffered position. Although the Petitioner asserts that the 
position requires expertise in human resource management, business administration. accounting, 
marketing, government regulation and compliance and public relations and business contracts, the 
Petitioner does not establish how this required .. expertise" elevates the proffered position to a 
specialty occupation. In addition, the Petitioner claims that these areas of expertise are areas that are 
studied in degree programs in hotel and hospitality management. However, the Petitioner has not 
offered sufficient evidence to support its assertion that it has satisfied this criterion of the 
regulations. We reiterate our earlier comments and findings regarding the implications of the 
position's Level II wage designation on the LCA. 
In addition, 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 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)(..f). 
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 qualifies as a specialty occupation. 
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Matter l?( L-H- LLC 
IV. BENEFICIARY'S QUALIFICATIONS 
The Director concluded that the Beneficiary would not be qualified to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However. a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the profTercd position does not require a 
baccalaureate or higher degree in a specific specialty. or its equivalent. Therefore. we need not and 
will not address the Beneficiary's qualifications further. 
V. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter (~fOtiende, 26 I&N Dec. 127. 128 (BIA 2013). Here. that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter qfL-H- LLC, ID# 16393 (AAO May 10, 2016) 
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