dismissed H-1B Case: Hospitality Management

(b)(6)
DATE: MAY 2 6 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
REV 3/2015 www.usds.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The petitioner filed a 
combined motion to reopen and motion to reconsider. Upon review, the Director affirmed her 
decision denying the petition. The matter is now before the Administrative Appeals Of fice (AAO) 
on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-12 9) to the Vermont Service 
Center. In the Form I-12 9 visa petition, the petitioner describes itself as a hotel that was established 
in In order to employ the beneficiary in what it designates as a food service manager position, 
the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to 
section 101( a)( 15 )(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 11 0l( a)( 15 )(H)(i)(b). 
The Director reviewed the information and determined that the petitiOner had not established 
eligibility for the benefit sought. The Director denied the petition, concluding that the petitioner did 
not establish that the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. The petitioner submitted a combined motion to 
reopen and motion to reconsider, and the Director affirmed her decision denying the petition. 
Thereafter, the petitioner submitted an appeal. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the 
Director's decision dated February 11, 20 13; (5) the Notice of Appeal or Motion (Form I-290B) 
( (6) the Director's decision dated September 8, 2014; and (7) the Form I-290B 
( and supporting documentation. 1 We reviewed the record in its entirety before 
issuing our decision.L. 
For the reasons that will be discussed below, we find that the petitioner has not established eligibility 
for the benefit sought. The appeal is dismissed and the petition remains denied. 
II. SPECIALTY OCC UPATION 
The primary issue is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
1 We observe that on motion and on appeal the petitioner repeatedly references the proffered position as 
"housekeeping manager." No explanation for this discrepancy was provided. Thus, we must question the 
accuracy of the documents and whether the information provided is correctly attributed to this particular 
petitioner, position, and beneficiary. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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A. Legal Framework 
For an H-lB 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. 
Section 21 4(i)(l) of the Act, 8 U.S.C. § 11 84( 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.P.R. § 21 4.2(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.P.R. § 21 4.2( 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. 
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As a threshold issue, it is noted that 8 C.P.R. § 214. 2(h)(4)(iii)( A) must logically be read together 
with section 214(i )(l) of the Act and 8 C.P.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. 28 1, 291 (198 8) (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 ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.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.P.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.P.R. § 214. 2(h)(4)(i ii)(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 )(1) of the Act and the regulation at 8 C.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.R. § 214. 2(h)(4)(ii i)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139 , 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly been 
able to establish a minimum entry requirement in the United States of a baccalaureate or higher 
degree in a specific specialty or its equivalent directly related to the duties and responsibilities of the 
particular position, fairly represent the types of specialty occupations that Congress contemplated 
when it created the H-lB visa category . 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
In ascertaining the intent of a petitioner, USCIS looks to the Form I-129 and the documents filed in 
support of the petition. It is only in this manner that the agency can determine the exact position 
offered, the location of employment, the proffered wage, et cetera. Pursuant to 8 C.P.R. 
§ 214 .2(h)(9)(i), the director has the responsibility to consider all of the evidence submitted by a 
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petitioner and such other evidence that he or she may independently require to assist his or her 
adjudication. Further, the regulation at 8 C.F.R. § 214. 2(h)(4)(iv) provides that "[ a]n H-lB 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." 
B. Proffered Position 
In the letter of support, the petitioner states that the beneficiary will perform the following job duties 
in the proffered position: 3 
In the position of Food Service Manager, the beneficiary will need to be able to 
perform all housekeeping functions and ensure that all associates are adhering to hotel 
policies, standards, procedures and regulations. In this position, the beneficiary will 
have to assist the resident manager or general manager in all areas to ensure smooth 
operations. The beneficiary will assist training and development of all associates 
working for the Food and Beverage department. 
In the position of Food Service Manager, [the beneficiary] will be responsible for a 
variety of tasks in coordinating, supervising, and directing all aspects of the food and 
beverage outlets' operations of the dining facilities at [the petitioner], while 
maintaining profitable food and beverage outlets and high quality products and 
service levels. 
* * * 
• 30% of total work time - Oversee all aspects of the daily operation of the 
hotel's food and beverage outlets; Be involved in and/or conduct departmental and 
hotel training. 
• 20% of total work time - Monitor quality of service in food and beverage 
outlets by judging appearance and taste of products and checking preparation 
methods to determine quality; Ensure the training of department heads and employees 
on SOP' s, report preparation and technical job tasks. 
• 20% of total work time - Ensure preparation of required reports in a timely 
manner including, but not limited to, Wage Progress, payroll, revenue, employee 
3 It must be noted for the record that the petitioner references the food service manager's functions as 
housekeeping functions. The record provides no explanation for this inconsistency. Thus, we must question 
the accuracy of the document and whether the information provided is correctly attributed to this particular 
petitioner, position, and beneficiary. 
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NON-PRECEDENT DECISION 
schedules, quarterly action plans; Ensure compliance with all local liquor laws, and 
health and sanitation regulations; Understand, implement and monitor corporate 
promotions in outlets, including buffet and three-meal concept standards; Interview 
candidates for front-of-house food and beverage positions and follow standards for 
hiring approvals; Organize, coordinate and assist in marketing special events in the 
dining facilities such as receptions, parties and large corporate functions; 
• 15% of total work time- Work with other food and beverage managers and 
keep them informed of food and beverage issues as they arise. 
• 10% of total work time - Comply with weekly and monthly forecasting 
procedures; Attend company management meetings and training as required by 
management; Participate in required M.O.D. program as scheduled. 
• 5% of total work time - Conduct staff performance reviews in accordance 
with [the petitioner's] standards; Keep immediate supervisor fully informed of all 
problems or matters requiring his/her attention; Coordinate and monitor all phases of 
Loss Prevention in the food and beverage outlets; and Perform other duties as 
requested by management. 
In addition, the petitioner provides additional information regarding the supervisory functions, 
human resources functions, quality of food and service functions, administrative functions, and 
general functions of the proffered position. 4 
The petitioner also claims that the "Food Service Manager's duties and level of responsibilities are 
sufficiently complex that the minimum of a baccalaureate degree in Hospitality Management or a 
related field is required." 
C. Material Findings 
The primary issue in this matter is whether the petitioner has provided sufficient evidence to 
establish that it will employ the beneficiary in a specialty occupation position. Based upon a 
complete review of the record of proceeding, we will make some preliminary findings that are 
material to the determination of the merits of this appeal. 
4 We note that under the heading "Human Resources functions," the petitioner states that "Food Service 
Managers also conduct staff performance reviews in accordance with standards." The 
petitioner mistakenly references No explanation for this discrepancy was provided. We 
must therefore question the accuracy of the document and whether the information provided is correctly 
attributed to this particular petitioner, position, and beneficiary. 
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Requirements for the Proffered Position 
Upon review, we find that the record contains inconsistent information regarding the academic 
requirements of the proffered position. 
• Specifically, in the letter of support, the petitioner stated that the proffered position's "duties 
and level of responsibilities are sufficiently complex that the minimum of a baccalaureate 
degree in Hospitality Management or a related field is required." 
• However, further in the same letter, the petitioner stated that the proffered position "requires 
a minimum of a Bachelor's degree or an equivalent Diploma, together with work experience 
in fine dining. A degree in Hospitality Management is desired." 
• In addition, in the same letter, the petitioner stated that "[t]his position requires a minimum of 
a Bachelor's degree in Hotel and Restaurant Management, Hospitality Management or an 
equivalent Diploma, together with professional work experience in the field." 
• In response to the Director's RFE, the petitioner stated (through counsel) "[t]his position 
requires a minimum of a Bachelor's degree or an equivalent Diploma, together with work 
experience in fine dining. A degree in Hospitality Management or Business Administration 
is desired. 
• Further, the petitioner provided a letter from which states that the proff ered 
position requires "at least a baccalaureate level of education in Restaurant Management or its 
equivalent." 
• The petitioner also submitted a copy of its internet job vacancy announcement for the 
proffered position that states that a successful candidate "[m]ust have culinary experience 
and a bachelors [sic] degree." 
• On motion and on appeal, the petitioner claimed (through counsel) that it "requires its 
candidates for the position of Food Service Manager to have a bachelor's in hotel 
management or a related field, or its equivalent." 
No explanation for the variances in the petitioner's claimed requirements was provided. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 59 1- 92 (BIA 1988). 
In addition, it must be noted that the petitioner's desire for a degree in hospitality management or 
business administration is. not an indication of a requirement of a degree in one of these disciplines. 
Furthermore, even assuming for the sake of argument that the petitioner required a bachelor's degree 
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in business administration for the proffered position, the statement is inadequate to establish that the 
proposed position qualifies as a specialty occupation. Since there must be a close correlation 
between the required specialized studies and the position, the requirement of a degree with a 
generalized title, such as business administration, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Associates, 19 I&N Dec. 558 
(Comm'r 198 8). 
To demonstrate that a job requires the theoretical and practical application of a body of highly 
specialized knowledge as required by section 21 4(i)(l) of the Act, a petitioner must establish that the 
position requires the attainment of a bachelor's or higher degree in a specialized field of study, or its 
equivalent. As discussed above, USCIS interprets the degree requirement at 8 C.P.R. 
§ 214. 2(h)(4)(iii)( A) to require a degree in a specific specialty that is directly related to the proposed 
position. Although a general-purpose bachelor's degree, such as a degree in business administration, 
may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will 
not justify a finding that a particular position qualifies for classification as a specialty occupation. 
See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1s t Cir. 2007). 5 
D. Labor Condition Application 
In support of the petition, the petitioner submitted a Labor Condition Application (LCA) stating that 
the proffered position falls under the occupational category "Food Service Managers" - SOC 
(ONET/OES) code 11 -9051, at a Level I (entry) wage. 
When completing the LCA, wage levels should be determined only after selecting the most relevant 
Occu pational Information Network (O *NET) code classification. Then, a prevailing wage 
determination is made by selecting one of four wage levels for an occupation based on a comparison 
of the employer's job requirements to the occupational requirements, including tasks, knowledge, 
5 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
!d. 
[t]he 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-1B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 F.Supp.2d 
172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of Michael Hertz 
Assocs., 19 I & 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 the simple 
expedient of creating a generic (and essentially artificial) degree requirement. 
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skills, and specific vocational preparation (education, training and experience) generally required for 
acceptable performance in that occupation. 6 
Prevailing wage determinations start with a Level I (entry) and progress to a wage that is 
commensurate with that of a Level II (qualified), Level III (experienced), or Level IV (f ully 
competent) after considering the job requirements, experience, education, special skills/other 
requirements and supervisory duties. Factors to be considered when determining the prevailing 
wage level for a position include the complexity of the job duties, the level of judgment, the amount 
and level of supervision, and the level of understanding required to perform the jo b duties.7 DOL 
emphasizes that these guidelines should not be implemented in a mechanical fashion and that the 
wage level should be commensurate with the complexity of the tasks, independent judgment 
required, and amount of close supervision received. 
The "Prevailing Wage Determination Policy Guidance" issued by the U.S . Department of Labor 
(DOL ) provides a description of the wage levels. A Level I 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 employ er'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 I wage should be 
considered. 
6 For additional information on wage levels, see DOL, Employment and Training Administration's Prevailing 
Wage Determination Policy Guidance, Nonagricultural Immigration Programs (Rev. Nov. 2009), available on 
the Internet at http://www.foreignlaborcert.doleta.gov/pdf/Policy _ Nonag_Progs.pdf. 
7 A point system is used to assess the complexity of the job and assign the wage level. Step 1 requires a "1" to 
represent the job's requirements. Step 2 addresses experience and must contain a "0" (for at or below the level 
of experience and SVP range), a "1" (low end of experience and SVP), a "2" (high end), or "3" (greater than 
range). Step 3 considers education required to perform the job duties, a "1" (more than the usual education by 
one category) or "2" (more than the usual education by more than one category). Step 4 accounts for Special 
Skills requirements that indicate a higher level of complexity or decision-making with a "1 "or a "2" entered as 
appropriate. Finally, Step 5 addresses Supervisory Duties, with a "1" entered unless supervision is generally 
required by the occupation. 
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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.g ov /pdf/ NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
DOL guidance further indicates that a requirement for years of education and/or experience that are 
generally required as described in the O* NET Job Zones would be an indication that a wage 
determination at Level II would be proper classification for a position. 8 
The occupational category "Food Service 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 OnL ine Help Center, available at htt p://www .onetonline. org/ 
help/online/zones, for a discussion of Job Zone 3. 
In the instant case, the petitioner designated the proffered position as a Level I position. This 
suggests that the petitioner's academic and/or professional experience requirements for the position 
would be less than "training in vocational schools, related on-the-job experience, or an associate's 
degree" as stated for occupations designated as O* NET Job Zone 3. Accord ingly, the designation of 
the proffered position as a Level I (entry) position (relative to others within the occupational 
category) suggests that an educational credential falling short of a bachelor's degree would be 
sufficient to perform the tasks of the proffered position. 
E. Analysis 
We will first review the record of proceeding 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. 
We recognize DOL' s Occupational Outlook Handbook (hereafter the Handbook) as an authoritative 
source on the duties and educational requirements of the wide variety of occupations that it 
8 A Level II wage rate is described by DOL as follows: 
Level II (qualified) wage rates are assigned to job offers for qualified employees who have 
attained, either through education or experience, a good understanding of the occupation. 
They perform moderately complex tasks that require limited judgment. An indicator that the 
job request warrants a wage determination at Level II would be a requirement for years of 
education and/or experience that are generally required as described in the O*NET Job 
Zones. 
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/ 
NPWH C _Guidance_ Revised _11_ 2009. pdf. 
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addresses. As previously discussed, the petitioner attested in the LCA that the proffered position 
falls under the occupational category "Food Service Managers." 
We reviewed the chapter of the Handbook entitled "Food Service Managers," including the sections 
regarding the typical duties and requirements for this occupational category. 9 However, the 
Handbook does not indicate that "Food Service Managers " comprise an occupational group for 
which at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. 
The subchapter of the Handbook entitled "How to Become a Food Service Manager" states the 
following about this occupational category: 
Most applicants qualify with a high school diploma and long-term work experience in 
the food service industry as a cook, waiter or waitress, or counter attendant. However, 
some receive training at a community college, technical or vocational school, culinary 
school, or at a 4-yea r 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. 
9 The Handbook, which is available in printed form, may also be accessed on the Internet, at http:// 
www.stats.bls.gov/oco/. Our references to the Handbook are to the 2014- 2015 edition available online. We 
hereby incorporate into the record of proceeding the chapter of the Handbook regarding "Food Service 
Managers." 
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U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 20 14-15 ed., 
Food Service Managers, available at htt p://www .bls.gov/ooh/management/f ood-service­
managers.htm#tab-4 (last visited May 20, 2015 ). 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. The Handbook 
specifically states that a bachelor's degree is not required for food service managers. The narrative 
of the Handbook also states that some postsecondary education is increasingly "preferred" for 
"many" (but not necessarily all, or even most) manager positions, especially at upscale restaurants 
and hotels, but it does not report that "some postsecondary education" necessarily consists of a 
bachelor's degree or equivalent, let alone one in a specific specialty. Further, the text of the 
Handbook indicates that there are many colleges and universities that offer bachelor's degree 
programs in restaurant and hospitality management or institutional food service management, but for 
those that are not interested in a bachelor's degree, there are opportunities to attend community and 
junior colleges, technical institutes, and other institutions that offer programs in the field leading to 
an associate's degree. According to the Handbook, an associate's degree in restaurant and hospitality 
management or institutional food service management may qualify for jobs as food service 
managers. 
Upon review, we find that the Handbook does not support the claim that the occupational category 
here is one for which normally the minimum requirement for entry is a baccalaureate degree (or 
higher) in a specific specialty, or its equivalent. Even if it did (which it does not), the record lacks 
sufficient evidence to support a finding that the particular position proffered here - which the 
petitioner has indicated on the LCA is a Level I (entry) position in relation to others within the 
occupation) - would normally have such a minimum, specialty degree requirement or its equivalent. 
In the instant case, the duties and requirements of the position as described in the record of 
proceeding do not indicate that this particular position proffered by the petitioner is one for which a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214. 2(h)(4)(iii)( A)(1) . 
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) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 11 02 (S .D.N.Y . 198 9)). 
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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. 
The petitioner submitted copies of job advertisements in support of the assertion that the degree 
requirement is common to the petitioner's industry in parallel positions among similar organizations. 
However, upon review of the documents, we find that the petitioner's reliance on the job 
announcements is misplaced. 
In the Form I-129, the petitioner stated that it is a hotel with 40 employees. The petitioner also 
reported its gross annual income as $3 million, but did not provide its net annual income. The 
petitioner designated its business operations under the North American Industry Classification 
System (NAlCS) code 721110. 10 This NAlCS code is designated for "Hotels (except Casino Hotels) 
and Motels ." The U.S. Department of Commerce, Census Bureau website describes this NAlCS 
code by stating the following: 
This industry comprises establishments primarily engaged in providing short-term 
lo dging in facilities known as hotels, motor hotels, resort hotels, and motels. The 
establishments in this industry may offer food and beverage services, recreational 
services, conference rooms and convention services, laundry services, parking, and 
other services. 
U.S. Dep't of Commerce, U.S. Census Bureau, 2012 NAICS Definition, 721 110 -H otels (except 
Casino Hotels) and Motels, available at htt p://www .census. gov/cgi-bin/sssd/naics/naicsrch (last 
visited May 20, 2015). 
For the petitioner to establish that an organization is similar under this criterion of the regulations, it 
must demonstrate that the petitioner and the organization share the same general characteristics. 
Without such information, evidence submitted by a petitioner is generally outside the scope of 
consideration for this criterion, which encompasses only organizations that are similar to the 
petitioner. 
We will briefly note that, without more, the job postings do not appear to be from organizations 
similar to the petitioner. 11 When determining whether the petitioner and the organization share the 
10 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used 
to classify business establishments according to type of economic activity and, each establishment is 
classified to an industry according to the primary business activity taking place there. See 
http://www.censu s.gov/eos/www/naics/ (last visited May 20, 2015). 
11 
The postings include the following: (1) several providers of healthcare; (2) a provider of food services, 
(b)(6)
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Page 14 
same general characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, the particular scope of operations, as well as the level of revenue 
and staffing (to list just a few elements that may be considered). It is not sufficient for the petitioner 
to claim that an organization is similar and in the same industry without providing a legitimate basis 
for such an assertion. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
We further observe that some of the advertisements do not appear to be for parallel positions. For 
example, the posting from states that the position is for a food and beverage 
manager and requires a degree, a minimum of 5 years of experience in the hospitality industry, and 
at least 2 years of experience as a food and beverage director or assistant food and beverage director. 
The advertisement for the assistant food service director in New Jersey also 
requires a degree, along with "3+ year's successful, similar experience in LTC and or Sub Acute 
setting and 2+ year successful supervisory experience." In addition, the announcement from 
states that the position is for a retail food service manager that requires a degree, a 
minimum of 8 years of food service experience, and at least 3 to 5 years of retail operational, food 
service management experience. Similarly, an advertisement for the 
for the position of assistant director, food and beverage requires a degree, "plus 4+ years 
related experience, including management experience" As previously discussed, the petitioner 
designated its proffered position as a wage level I (entry level) on the LCA. The advertised positions 
appear to be for more senior positions than the proffered position. More importantly, the petitioner 
has not sufficiently established that the primary duties and responsibilities of the advertised positions 
are parallel to those of the proffered position. 
In addition, some postings do not indicate that at least a bachelor's degree in a directly related 
specific specialty (or its equivalent) is required. 12 For instance, the postings from the following 
facilities management, and uniform and career apparel to healthcare institutions, universities and school 
districts, stadiums and arenas; (3) a not-for-profit, human service agency; and (4) a university. It does not 
appear that the advertisements are from companies primarily engaged in providing lodging. 
12 
As discussed, the degree requirement set by the statutory and regulatory framework of the H-lB program is 
not just a bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to 
the duties of the position. See Section 214(i)(l)(b) of the Act and 8 C.P.R.§ 214.2(h)(4)(ii). 
To reiterate, although a general-purpose bachelor's degree, such as a degree in business administration, may 
be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a 
finding that a particular position qualifies for classification as a specialty occupation. See Royal Siam Corp. 
v. Chertoff, 484 F.3d at 147. 
In addition, a preference for a degree in a field is not an indication of a minimum requirement. 
(b)(6)
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Page 15 
organizations state that a degree 1s necessary, but they do not state that a specific specialty is 
required: 
• 
• The advertisement for the position of assistant food service director m 
New Jersey; 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
The job postings suggest, at best, that although a bachelor's degree is sometimes required for food 
service manager positions, a bachelor's degree in a specific specialty (or its equivalent) is not. 13 
As the documentation does not establish that the petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 14 That is, not every deficit of every job posting has been addressed. 
13 It must be noted that even if all of the job postings indicated that a bachelor's degree in a specific specialty, 
or its equivalent, is common to the industry in parallel positions among similar organizations (which they do 
not), the petitioner does not demonstrate what inferences, if any, can be drawn from these advertisements with 
regard to determining the common educational requirements for entry into parallel positions in similar 
organizations. See generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
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 outweigh 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. 
14 The petitioner did not provide any independent evidence of how representative the job postings are of the 
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In addition, the petitioner submitted a letter from Executive Human Resource Director 
for the We reviewed the letter from (the writer) and find that 
it is almost identical to the petitioner's letter dated November 5, 2012 submitted in response to the 
RFE. More specifically, the wording of the letters matches virtually verbatim, including 
grammatical and punctuation errors, as well as the same font type and size, margins, date, etc. When 
affidavits are worded the same (and include identical errors), it indicates that the words are not 
necessarily those of the affiant and may cast some doubt on the affidavits' validity. 15 
Further, we note that the writer states that the company is a hotel company with three properties. In 
addition, the writer states that "[t]he job duties of a Food Service Manager are so complex and 
unique that they may not be performed by an individual who has not attained at least a baccalaureate 
level of education in Restaurant Management or its equivalent." The writer further states that "we 
have hired employees for the [food service manager] position with a minimum qualification of a 
bachelor's degree." We observe that the writer did not provide any documentary evidence to 
corroborate that she currently or in the past employed individuals in parallel positions to the 
proffered position, nor did she provide any documentation to substantiate the claimed academic 
requirements. The writer has not submitted any probative evidence of her organization's recruitment 
and hiring practices. Thus, the letter is insufficient to establish that a degree requirement in a 
specific specialty, or its equivalent, is common to the petitioner's industry in parallel positions 
among similar organizations. 
The petitioner also submitted a printout from the Association of Nutrition and Foodservice 
Professionals website. The printout states that there are four ways to become a certified dietary 
manager and a certified food protection professional. Specifically, the petitioner references 
"Pathway II," which states the following: 
particular advertising employers' recruiting history for the type of job advertised. As the advertisements are 
only solicitations for hire, they are not evidence of the actual hiring practices of these employers. 
15 The use of identical language and phrasing across the various letters suggest that the language in the letters 
is not the authors' own. Cf Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir. 2006) (upholding an adverse 
credibility determination in asylum proceedings based in part on the similarity of the affidavits); Mei Chai Ye 
v. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge may 
reasonably infer that when an asylum applicant submits strikingly similar affidavits, the applicant is the 
common source). 
Because the letters appear to have been drafted by someone other than the purported authors, the letters 
possess little credibility or probative value. In evaluating the evidence, the truth is to be determined not by 
the quantity of evidence alone but by its quality. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). 
(b)(6)
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NON-PRECEDENT DECISION 
Pathway II: for candidates who hold a two-year or four-year college degree in 
foodservice management or nutrition, two-year culinary arts degree, or two-year 
hotel -restaurant management degree. 
The printout indicates that an associate's degree or a bachelor's degree would be acceptable for 
candidates applying for certification. The evidence does not support the assertion that at least a 
bachelor's degree in a specific specialty, or its equivalent, is required. 
On motion, the petitioner submitted a letter by from The letter is 
dated March 1, 20 13. We have reviewed the documentation and find that it would not be probative 
in this matter. 
Specifically, has not adequately established his expertise to render the opinion made in 
this matter. In his opinion letter and professional summary, describes his professional 
credentials in the hospitality industry. However, based upon a complete review of 
letter and professional summary, he has not provided sufficient information regarding the basis of 
his claimed expertise on this particular issue. claims that he is qualified to comment 
on the position of food service manager because of his experience in the hospitality industry. 
Without further clarification, it is unclear how his experience would translate to expertise or 
specialized knowledge regarding the current recruiting and hiring practices of hotel companies 
similar to the petitioner for food service manager positions (or parallel positions). 
does not cite specific instances in which his past opinions have been accepted or 
recognized as authoritative on this particular issue. There is no indication that he has published any 
work or conducted any research or studies pertinent to the educational requirements for food service 
managers (or parallel positions) in the petitioner's industry for similar organizations, and no 
indication of recognition by professional organizations that he is an authority on those specific 
requirements. The opinion letter contains no evidence that it was based on scholarly research 
conducted by in the specific area upon which he is opining. For instance, in reaching 
his determination, provides no documentary support for his ultimate conclusion 
regarding the education required for the position (e .g., statistical surveys, authoritative industry or 
government publications, or professional studies). asserts a general industry 
educational standard for organizations similar to the petitioner, without referencing any supporting 
authority or any empirical basis for the pronouncement. 
Upon review of the opinion letter, there is no indication that possesses any knowledge 
of the petitioner's proffered position. The fact that he attributes a degree requirement to such a 
generalized treatment of the .proffered position undermines the credibility of the opinion letter. 
does not demonstrate or assert in-depth knowledge of the petitioner's specific business 
operations or how the duties of the position would actually be performed in the context of the 
petitioner's business enterprise. His opinion does not relate his conclusion to specific, concrete 
aspects of this petitioner's business operations to demonstrate a sound factual basis for the 
conclusion about the educational requirements for the particular position here at issue. For example, 
there is no evidence that has visited the petitioner's business, observed the petitioner's 
(b)(6)
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Page 18 
employees, interviewed them about the nature of their work, or documented the knowledge that they 
apply on the job. provides general conclusory statements regarding the proffered 
position, but he does not provide a substantive, analytical basis for his opinion and ultimate 
conclusions. 
Further, there is no indication that the petitioner advised that it characterized the 
proffered position as a low, entry-level position relative to other positions falling under the 
occupational category "Food Service Managers" (as indicated by the wage-level on the LCA) . It 
appears that would have found this information relevant for his opinion letter. 
Moreover, without this information, the petitioner has not demonstrated that possessed 
the requisite information necessary to adequately assess the nature of the petitioner's position and 
appropriately determine what would constitute similar positions based upon the job duties and 
responsibilities. 
In summary, and for each and all of the reasons discussed above, we conclude that the advisory 
opinion rendered by is not probative evidence to establish the proffered position 
qualifies as a specialty occupation. The conclusions reached by lack the requisite 
specificity and detail and are not supported by independent, objective evidence demonstrating the 
manner in which he reached such conclusions. There is an inadequate factual foundation established 
to support the opinion and we find that the opinion is not in accord with other information in the 
record. 
We may, in our discretion, use as advisory optmon 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 19 88). As a reasonable exercise of its discretion we discount the 
advisory opinion letter as not probative of any criterion of 8 C.P.R. § 21 4.2 (h)(4)(iii)(A). For 
efficiency's sake, we hereby incorporate the above discussion and analysis regarding the opinion 
letter into each of the bases in this decision for dismissing the appeal. 
On appeal, the petitioner submitted a copy of an H-1B approval notice, LCA and credential 
evaluation of an individual relating to another petition. The petitioner does not provide any 
information regarding the petitioning organization in that matter to conduct a meaningfully 
substantive comparison of its business operations to the petitioner. Thus, the petitioner has not 
established that the organizations are similar. 
Further, the petitioner claims that the individual from that petition is working in a food service 
manager position. However, the petitioner does not provide any specific information regarding the 
job duties and day-to-day responsibilities for this food service manager position. There is also no 
information regarding the complexity of the job duties, supervisory duties (if any), independent 
judgment required or the amount of supervision received. Accordingl y, there is insufficient 
information regarding the duties and responsibilities of this position to determine whether it is the 
same or parallel to the proffered position. Moreover, we observe that the petitioner did not provide 
(b)(6)
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Page 19 
any documentary evidence to corroborate that the organization currently or in the past employed 
individuals in parallel positions to the proffered position. 
The petitioner also submitted the resumes of individuals from other organizations. 16 Notably, the 
petitioner did not submit the academic credentials of these individuals, e.g. copies of diplomas, 
transcripts. Upon review, we find that these individuals are not employed in the proffered position. 
Thus, the petitioner has not established the relevancy of the documentation to this matter. That is, 
the educational level of individuals who hold dissimilar positions is not relevant to the instant issue 
of whether the proffered position qualifies as a specialty occupation. 
Thus, based upon a complete review of the record, 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 of 8 C.P.R. 
§ 214.2( h)( 4 )(iii )(A)(2) . 
We will next consider the second alternative prong of 8 C.P.R. § 214. 2(h)(4)(ii i)(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. Upon review, we find that the 
petitioner has not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. For instance, the petitioner did not submit information relevant to a detailed 
course of study leading to a specialty degree and did not establish how such a curriculum is 
necessary to perform the duties it may believe are so complex and unique. While a few related 
courses may be beneficial 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 description of the duties does not specifically identify any tasks that are so complex or 
unique that only a specifically degreed individual could perform them. The record does not establish 
which of the duties, if any, of the proffered position would be so complex or unique as to be 
distinguishable from those of similar but non-degreed or non-specialty degreed employment. 
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. As previously mentioned, the wage-level of the proffered position indicates that 
16 
We note that a resume represents a claim by the individual regarding his/her credentials, rather than 
evidence to support that claim. 
(b)(6)
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(relative to other positions falling under this occupational category) the beneficiary is only required 
to have a basic understanding of the occupation; that he will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that he will be closely supervised and his work 
closely monitored and reviewed for accuracy; and that he will receive specific instructions on 
required tasks and expected results. 
Without further evidence, it is not credible that the petitioner's 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 (f ully 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." 17 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 ex perience 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 satisfied the second 
alternative prong of 8 C.P.R. § 214. 2(h)(4)(iii)(A)(2). 
The third criterion of 8 C.P.R . § 214. 2(h)(4)(iii )(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
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, 
17 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. 
(b)(6)
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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-1B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See § 21 4(i )(1) of the Act; 8 C.P.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. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualif ies 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 posi tion 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. 
In response to the RFE, the petitioner submitted its internet job vacancy announcement for the 
proffered position. 18 The announcement is dated November 7, 20 12. Thus, the job posting was 
posted after the Director's RFE and does not pre-date the filing of the petition. We note that the 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.P.R. 
§ 103.2 (b )(1). Evidence that the petitioner creates after the director issues an RFE is not considered 
independent and objective evidence. Necessarily, independent and objective evidence would be 
evidence that is contemporaneous with the event to be proven and existent at the time of the 
director's notice. Therefore, the posting is not probative evidence establishing that the petitioner has 
satisfied the third criterion of 8 C.P.R. § 214. 2(h)(4)(iii)(A). 
The petitioner also provided an organizational chart, along with a list of the employees' educational 
credentials and brief job duties. Notably, the proffered position is not listed on the organizational 
chart. In addition, the petitioner provided the H -1B approval notices, LCAs, and credential 
18 
It must be noted for the record that the announcement indicates that the candidate " [ m Just have culinary 
experience and a bachelors [sic] degree." To reiterate, the degree requirement set by the statutory and 
regulatory framework of the H-lB program is not just a bachelor's or higher degree, but such a degree in a 
specific specialty that is directly related to the duties and responsibilities of the position. 
(b)(6)
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Page 22 
evaluations of its housekeeping manager and front office manager. We find that the documentation 
is irrelevant to this matter as the employees are not employed in the proffered position. 
We observe that the petitioner states that since opening it has employed three individuals in the 
proffered position. However, on appeal, the petitioner states that "was the only one 
ever hired as [a] Food Service Manager by [the petitioner] since its opening in " No 
explanation for this inconsistency was provided. The petitioner submitted the resume and pay 
statement of Notably, the pay statement indicates ' 
as the employer and her position as "F&B Director. " In addition, the petitioner submitted 
several documents prepared by which indicate her position as food and beverage 
manager and/or catering manager. The petitioner did not provide information regarding 
job duties and respon sibilities. Based upon the information provided, does not serve in 
the proffered position of food service manager. 
Moreover, the petitioner stated in the Form 1-129 petition that it has 40 employees and that it was 
established in (appr oximately years prior to the filing of the H-lB petition). The 
petitioner did not provide any further information or evidence regarding its recruiting history for the 
position advertised. Consequently, it cannot be determined how representative one job posting over 
a year period is of the petitioner's normal recruiting and hiring practices for the proffered 
position. Without further information, the submission is not persuasive in establishing that the 
petitioner normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for 
the position. 
Upon review of the.record, the petitioner did not provide sufficient documentary evidence to support 
the assertion that it normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, directly related to the duties of the position. The petitioner has not satisfied the third 
criterion of 8 C.F.R. § 214. 2(h)(4)(iii)(A). 
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. We reviewed the petitioner's statements regarding the proffered position and its 
business operations. However, 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. 
(b)(6)
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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 (of 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 would likely be classified at a higher-level, such as 
a Level III (experienced) or Level IV (f ully competent) position, requiring a substantially higher 
prevailing wage. 19 
Although the petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. Thus, the petitioner has submitted inadequate 
probative evidence to satisfy the criterion of the regulations 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. The appeal will be dismissed and the 
petition denied. 
III. CONCL USION AND ORDER 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025 , 1043 (E .D. Cal. 
200 1), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 14 5 (3d Cir. 2004) 
(noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd. 345 F.3d 
683 ; see also BDPCS, Inc. v. Fed. Communications Comm'n, 35 1 F.3d 117 7, 11 83 (D .C. Cir. 2003) 
(" When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable." ). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 20 In visa petition proceedings, it 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
19 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. 
20 
As the identified grounds for denial are dispositive of the petitioner's eligibility, we need not address the 
additional issues in the record of proceeding. 
(b)(6)
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Page 24 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 12 7, 12 8 (BIA 2013). Here, that burden 
has not been met 
ORDER: The appeal is dismissed.