dismissed H-1B Case: Hospitality

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: FEB 1 9 2015 OFFICE: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
J1 0k�Jr� jw Ron Rosenb
-
erg ' / 
Chief, Administrative Appeals Office 
\ 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
On the Form I-129 visa petition, the petitioner describes itself as a motel established in· The 
petitioner seeks to extend the employment of the beneficiary in the position of "business operations 
specialist" at a salary of $45,000 per year.1 The petitioner, therefore, seeks to classify him as a 
nonimm igrant 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. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the petitioner failed to demonstr ate that the 
proffered position qualifies for class ification as a specialty occupation. 
The record of proceeding before the AAO contains the following: (1) the Form I-129 and 
supporting documentation; (2) the director's request for additional evidence (RFE); (3) the 
petitioner's response to the RFE; (4) the director's letter denying the petition; and (5) the 
Form I-290B and supporting documentation. 
Upon review of the entire record of proceeding, the AAO finds that the petitioner has failed to 
overcome the director's ground for denying this petition. Accordingly, the appeal will be dismissed, 
and the petition will be denied. 
I. FACTUAL AND PROCE DURAL HISTORY 
In the Form I -129 petition, the petitioner described itself as a motel. In a letter of support dated 
September 25, 2013 , the petitioner explained that it had been doing business as 
since , and that it is currently seeking to expand its business . The petitioner claimed that it 
required the continued services of the beneficiary as its business operations specialist, and as the 
Labor Condition Application (LCA) in support of the petition, the petitioner submitted an LCA that 
had been certified for use with a job prospect within the "Business Operations Specialist" 
occupational classification, SOC (O*NET/OES) Code 13-1199. The LCA specified a prevailing 
wage of $44,387.0 0; and the O*NET provides the following, limited information about this 
occupational category: 
Details Report for: 
13-1199.00 - Business Operations Specialists, All Other 
All business operations specialists not listed separately. 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Business Operations Specialist" occupational classification, 
SOC (O*NET/OES) Code 13-1199. The LCA claimed the petitioner would pay the prevailing wage of 
$44,387.00. 
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"All Other" titles represent occupations with a wide range of characteristics 
which do not fit into one of the detailed O*NET -SOC occupations. O*NET data 
is not available for this type of title. For more detailed occupations under this 
title, see below. 
13-1199.01 Energy Auditors �Bright Outlooki'Green 
13-1199 .02 Security Management Specialists$ 
13-1199.03 Customs Brokers• 
13-1199.04 Business Continuit y Planne rsfj: 
13-1199.05 Sustainability Specialiststllf 
13-1199. 06 Online Merchants�T 
See Employment & Training Administration, U.S. Dept. of Labor, O*Net OnLine, Details for 
Business Operations Specialists, All Other, available at http://www .onetonl ine.orgllink/details/13-
1199.00 (accessed Feb. 19, 2015). It is in this occupational context that the petitioner provided the 
following list of duties that it associated with the position: 
• Common duties include maintaining equipment and store fixtures, overseeing 
customer service operations and maintaining store files. (Approximately 15% of 
work time); 
• Maintain or exceed department quality standards for the processing of all 
incoming paperwork, data reconciliation, issue tracking and resolution, and 
service. (Approximately 15% of work time); 
• Facilitate the new accounts set up process and monitor incoming transfers of 
assets. (Approximately 10% of work time); 
• Proactively evaluate current procedures and processes and provide input for 
improvement as needed. (Approximately 10% of work time); 
• Ensure compliance with all applicable regulatory procedures and guidelines. 
(Approximately 25% of work time); 
• Interact with clients regarding the nature of the information process ing or 
computation needs a business system program is to address. (Approximately 10% 
of work time); 
• Handle back office operations like order inventory, track inventory, daily and 
monthly accounting and other similar duties. (Approximately 15% of work time); 
The petitioner also submitted copies of the beneficiary's Form W -2, Wage and Tax Statement, for 
2012, copies of recent paystubs, and a copy of the beneficiary's resume. 
,, .. ,, _______ ,_ __ _ _ _ _ __ _ _ _ _____ _ _ ____ _ 
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The director found the initial evidence insufficient to estab lish eligibility, and issued an RFE on 
January 2, 2014. The director requested additional evidence demonstrati ng that the proffered 
position was a specialty occupation, and also requested additional evidence demons trating the 
academic qualifications of the beneficiary. 
In a response received on March 26, 2014, counsel for the petitioner addressed the director's 
requests. Counsel restated the duties previously listed in the petitioner's letter of support, and 
asserted that a background in business was essenti al in order to perform these duties. Counsel 
claimed that the beneficiary held a Bachelor of Commerce degree and a Master's degree in Business 
Administration, and thus was well qualified to perform the duties of the proffered position. 
In addition, counsel submitted the following documentary evidence in response to the RFE: (1) an 
employee chart for the petitioner's organization; (2) copies of the petitioner's Form 1120S, U.S. 
Income Tax Return for an S Corporation, for 2013 ; (3) copies of the beneficiary's foreign academic 
credentials and an evaluation of those credentials by Education Evaluation and Immigration 
Service. 
After reviewing the evidence, the director determined that the petitioner had not established that the 
proffered position was a specialty occupation, and denied the petition. On appeal, counsel asse rts 
that the director's decision was erroneous, and submits a brief and additional evidence in support of 
this contention. 
II. THELAW 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1) defines the 
term "specialty occupation" as one 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 term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited 
to, architecture, enginee ring, mathematics, physical sciences, social sciences, 
medicine and health, education, business specialties, accounting, law, theology, and 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
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specific specialty, or its equivalent, as a minimum for entry into the occupation in the 
United States. 
Pursuant to 8 C.P.R. § 214.2 (h)(4)(iii)(A), to qualify as a specialty occupation, the position must 
also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions 
among similar organizations or, in the 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. 
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. 281, 291 (1988) (holding that construction of 
language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.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 P.3d 384, 387 (5th Cir. 2000). To avoid 
this illogical and absurd result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing 
supplemental criteria that must be met in accordance with, and not as alternatives to, the statutory 
and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 
8 C.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)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. See Royal Siam Corp. v. Chertoff, 484 P.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-lB 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 
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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, USCrS does not rely 
simply upon a proffered position's title. The specific duties of the position, combined with the 
nature of the petitioning entity's business operations, are factors to be considered. users must 
examine the ultimate employment of the beneficiary, and determine whether the position qualifies 
as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d at 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. 
III. ANALYSIS 
As a preliminary matter, we find that upon consideration of the totality of all of the petitioner's duty 
descriptions, including its assertions made in the initial filing, and counsel's assertions made in 
response to the director's RFE and on appeal, the evidence of record does establishes neither the depth, 
complexity, or level of specialization of the proposed duties of the proffered position, nor subst antial 
aspects of the matters in which the petitioner says that the beneficiary will engage. Rather, the 
proposed duties of the proffered position, and the position itself, are described in relatively generalized 
and abstract terms that do not relate substantial details about either the position or its constituent duties. 
Although the petitioner responded to the director's request for evidence, the descriptions of the 
proffered job focused generally on the title of Business Operations Specialist, and not on the actual 
requirements of the proffered job. 
Further, we find that the petitioner has not supplemented the job and duty descriptions with 
documentary evidence establishing the substantive nature of the work that the beneficiary would 
perform, whatever practical and theoretical applications of highly specialized knowledge in a specific 
specialty would be required to perform such substantive work, and whatever correlation may exist 
between such work and associated performance-required knowledge and attainment of a particular 
level of education, or educational equivalency, in a specific specialty. These evidentiary deficiencies 
alone preclude us from sustaining the appeal and approving the petition. 
That being said, we will now discuss the application of each supplemental, alternative criterion at 
8 C.F.R. § 214.2( h)(4)(iii)(A) to the evidence in this record of proceeding, with the understa nding 
that, for economy' s sake, the above comments and findings are deemed to be incorporated into the 
analysis of each criterion that follows below. This endeavor will indicate additional reasons why 
the appeal must be dismissed and the petition must be denied for failure to establish the proffered 
position as a specialty occupation. 
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We will first review the record of proceeding in relation to the criterion at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(1), which requires that a baccalaureate or higher degree in a specific specialty 
or its equivalent is norma lly the minimum requirement for entry into the particular position that is 
the subject of the petition. 
We turn first to the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook 
(Handbook), on which we routinely rely for the educational requirements of particular occupations. 
We recognize the Handbook as an authoritative source on the duties and educational requirements of 
the wide variety of occupations that it addresses. The Handbook does not contain an occupation with 
the specific title of Business Operations Specialist. Upon review of the described duties, we concur 
in part with the director, who found that the position encompasses duties of an administrative 
services manager. 
We reviewed the information in the Handbook regarding the occupational category "Business 
Operations Specialists" and note that this occupation is one for which the Handbook does not 
provide any information. The Handbook addresses such occupations in the following discussion: 
Data for Occupations Not Covered in Detail 
Employment for the hundreds of occupations covered in detail in the Handbook 
accounts for more than 121 million, or 85 percent of all, jobs in the economy. [The 
Handbook] presents summary data on 162 additional occupations for which 
employment projections are prepared but detailed occupational information is not 
developed. These occupations account for about 11 percent of all jobs. For each 
occupation, the Occupational Information Network (O*NET) code, the occupational 
definition, 2010 employment, the May 2010 median annual wage, the projected 
employment change and growth rate from 2010 to 2020, and education and training 
categories are presented. For guidelines on interpreting the descriptions of projected 
employment change, refer to the section titled "Occupational Information Included in 
the OOH." 
Approximately 5 percent of all employment is not covered either in the detailed 
occupational profiles or in the summary data given here. The 5 percent includes 
categories such as "all other managers," for which little meaningful information could 
be developed. 
Thus, the na rrative of the Handbook indicates that there are over 160 occupations for which only 
brief summaries are presented. That is, detailed occupational profiles for these 160+ occupations are 
not developed.2 The Handbook continues by stating that approximately five percent of all employment 
2 The AAO note that occupational categories for which the Handbook only includes summary data includes a 
range of occupations, including for example, postmasters and mail superintendents; agents and business 
managers of artists, performers, and athletes; farm labor contractors; audio-visual and multimedia collections 
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is not covered either in the detailed occupational profiles or in the summ ary data. The Business 
Operations Specialists occupational category is one of those occupations. 
Accordingly, in certain instances, the Handbook is not helpful. When, as here, the Handbook does 
not support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the petitioner to provide persuasive 
evidence that the proffered position otherwise more likely than not satisfies this or one of the other 
three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it 
is the petitione r's responsibility to provide probative evidence (e.g., documentation from other 
authoritative sources) that indicates whether the position in question qualifies as a specialty 
occupation. Whenever more than one objective, authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether a particular position qualifies 
as a specialty occupation. 
Moreover, we note that our independent review of DOL's Occupational Inf ormation Network 
(O*NET OnLine) also does not establish that the proffered position of Business Operations 
Specialist (SOC 13-1199) satisfies the first criterion described at 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
O*NET OnLine provided no educational requirements for the proffered job. See 
http://www .onetonline.org/link/summary/13-1199.00 (accessed February 4, 2015). 
Noting that the job title listed by the petitioner is not in the Handbook, the director found the job 
description that most closely matched the position requirements listed in the petition to be that of an 
Administrative Service Manager. The Handbook describes this occupation in relevant part as 
follows: 
Administrative services manager s plan, direct, and coordinate supportive services of 
an organization. Their specific responsibilities vary by the type of organization and 
may include keeping records, distributing mail, and planning and maintaining 
facilities. In a small organization, they may direct all support services and may be 
called the business office manager. Large organizations may have several layers of 
administrative managers who specialize in different areas. 
Duties 
Administrative Services Managers typically do the following: 
• Buy, store, and distribute supplies; 
• Supervise clerical and administrative personnel ; 
• Set goals and deadlines for the department; 
• Develop, manage, and monitor records; 
specialists; clergy; merchandise displayers and window trimmers; radio operators; first-line supervisors of 
police and detectives; crossing guards; travel guides; agricultural inspectors, as well as others. 
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• Recommend changes to policies or procedures in order to improve operations, 
such as changing what supplies are kept or how to improve recordkeeping; 
• Plan budgets for contracts, equipment, and supplies; 
• Monitor the facility to ensure that it remains safe, secure, and well maintained; 
• Oversee the maintenance and repair of machinery, equipment, and electrical and 
mechanical systems; 
• Ensure that facilities meet environmental , health, and security standards and 
comply with government regulations. 
Administ rative services managers plan, coordinate, and direct a broad range of 
services that allow organizations to operate efficiently. An organization may have 
several managers who oversee activities that meet the needs of mu ltiple departments, 
such as mail, printing and copying, recordkeeping, security, building maintenance, 
and recycling. 
The work of administrative services manage rs can make a difference in employees' 
productivity and satisfaction. For example, an administrative services manager might 
be responsible for making sure that the organization has the supplies and services it 
needs. In addition, an administrative services manager who is responsible for 
coordinating space allocation might take into account employee morale and available 
funds when determining the best way to arrange a given physical space. 
Administrative services manager s also ensure that the organization honor s its 
contracts and follows government regulations and safety standards. 
Administrative services managers may examine energy consumption patte rns, 
technology usage, and office equipment. For example, manager s may recommend 
buying new or different equipment or supplies in order to lower energy costs or 
improve indoor air quality. 
Administrative services manager s also plan for maintenance and the future 
replacement of equipment, such as compute rs. A timely replacement of equipment 
can help save money for the organization, because eventually the cost of upgrading 
and maintaining equipment becomes higher than the cost of buying new equipment. 
U.S. Dep't of La bor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Administrative Service Managers," http://www .bls.gov/ooh/managem ent/administr ative-services­
manage rs.htm#tab-2 (last visited February 4, 2015). 
The Handbook states the following with regard to the educational requirements necessary for 
entrance into this field: 
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A high school diploma or a General Educational Development (GED) diploma is 
typically required for someone to become an administrative services manager. 
However, administr ative services manager s typically enter the occupation with a 
bachelor's degree. Those with a bachelor's degree typically study business, 
engineering, or facility management. 
Id. at http://www .bls.gov/ooh/management/administrative-services-managers.htm#tab-4. 
As indicated above, the Handbook acknowledges that workers enter this job catego ry with a high 
school diploma or General Equivalency. The Handbook does not state that a bachelor's degree is 
needed for entry into this job category. Not only is a bachelor's degree not needed, but the further 
requirement for a degree in a specific specialty is not articulated by the Handbook. 
Although the Handbook acknowledges that some candidates for this occupation enter the field with 
a bachelor's degree, it does not state that a degree in a specific specialty is required. Rather, it states 
that disciplines as disparate as business, engineering, and facilities management are helpful in 
preparing workers for entry into the field. 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. 
Therefore, the Handbook's recognition that a general, non-specialty "background" in business 
administration, which is also the field in which the beneficiary holds his maste r's degree, is 
sufficient for entry into the occupation strongly suggests that a bachelor's degree in a specific 
specialty is not a normal, minimum entry requirement for this occupation. Accordingly, as the 
Handbook indicates that working as an administrative services manager does not normally require 
at least a bachelor's degree in a specific specialty or its equivalent for entry into the occupation, it 
does not appear that the proffered position as described will satisfy the criterion outlined at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(1). 
On appeal, counsel contends that the director's characterization of the proffered position as an 
administrative services manager was erroneous. Counsel contends that, in the alternative, the 
proffered position is more akin to that of a "Top Executive" as described in the Handbook. We note, 
however, that the duties listed under that occupational category do not correspond to those duties 
listed by the petitioner for the proffered position. For example, duties associated with the proffered 
position, such as such as "maintaining equipment and store fixtures" and hand ling "back office 
operations like order inventory," are not typically duties that are performed by top executives. 
We further note that the employee chart provided by the petitioner lists the petitione r's corporate 
officers. According to the chart, the petitioner is an eleven-employee operation and has a President 
and a Vice-President, who are undoubtedly at the "top" of the organization. The petitioner did not 
articulate the location of the proffered position within the corporate hierarchy of the company, 
thereby casting further doubt on the accuracy of the claim that the proffered position is akin to that 
of a top executive. 
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Nevertheless, even if we were to accept counsel' s assertions and characterize the proffered position 
into the category of Top Executives, the Handbook does not state that a degree in a specific 
specialty is required for entry into that occupational category. Rather, the Handbook indicates that a 
degree in a variety of fields are generally held by candidates entering this occupation. Specifically, 
the Handbook states: 
Many top executives have a bachelor's or master's degree in business administration 
or in an area related to their field of work. Top executives in the public sector often 
have a degree in business administration, public administration, law, or the liberal 
arts. Top executives of large corporations often have a master of business 
administration (MBA). College presidents and school superintendents typically have 
a doctoral degree in the field in which they originally taught or in education 
administration. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Top Executives," http://www .bls.gov /ooh/management /top-executives.htm#tab-4 (last visited 
February 4, 2015). 
As noted previously, to estab lish that a job requires the theoretical and practical application of a 
body of highly specialized knowledge as required by section 214(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. Even if the proffered position were established as being that of a top 
executive, as counsel contends on appeal, there is no indication that a degree in a specific specialty 
is required for entry into the occu pation. As discussed supra, 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. Chertojf, 484 F.3d 139, 147 
(1st Cir. 2007). 
Regardless of title, the petitioner claims that the duties of the proffered position can be performed 
by an individual with only a gene ral-purpose bachelor's degree, i.e., a bachelo r's degree in business 
administration. This assertion is tantamount to an admission that the proffered position is not in fact 
a specialty occupation. As such, even if the substantive nature of the work had been established -
which is not the case here - the present petition could not be approved for this additional reason. In 
the same vein, we are not persuaded by the Supporting Mfidavit submitted on ap_2eal from 
MD, RPh, for it merely asserts - and in conclusory terms, at that - view that the 
proffered position must be held by someone with "at least a bachelor's degree." neither 
states a need for a degree in a specific specialty nor provides substantive, factual ana lysis to support 
his view. 
As the evidence in the record of proceeding does not establish that at least a baccalaureate degree, 
or its equivalent, in a specific specialty is normally the minimum requirement for entry into the 
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particular position that is the subject of this petition, the petitioner has not satisfied the criterion at 
8 C.F.R. § 214.2(h) (4)(iii)(A)(J). 
Next, the AAO finds that the petitioner has not satisfied 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 to 
the petitioner's industry in positions that are both: (1) parallel to the proffered position; and 
(2) located in organizations that are similar to the petitioner. 
In determining whether there is such a co mmon 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 at 1165 
(D.Minn. 1999) (quotingHird!Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the petitioner has not established that its proffered position is one for 
which the Handbook reports an industry-wide requirement for at least a bachelor's degree in a specific 
specialty or its equivalent. Although the petitioner provided printouts of three job advertisements for 
"Business Operations Specialists," we note that none of these have similar requirements nor are they in 
the hotel/motel industry. 
Specifically, the first job posting is for a position with an aerospace company. The petitioner 
also submits a vacancy anno uncement for a position with a co mpany engaged in 
the field of consumer packaged goods manufacturing and retail, as well as job opportunity for an 
undisclosed employer in the "accounting/financial/insurance" industry. It is evidenct that none ofthese 
advertisements are comparable to the position of business operations specialist in an eleven-employee­
run motel. For example, it is evident that the petitioner's eleven-person motel is not engaged in the 
same industry as which, according to its website, claims to be "the world's largest aerospace 
company and the leading manufact urer of comm ercial jetliners and military aircraft combined. "3 
The same conclusion can be drawn with regard to the other two postings, both of which are 
soliciting candidates in fields outside the small-motel industry in which the petitioner is engaged. 
Moreover, we note that all three postings simply state a requirement for a bachelor's level education, 
but none of the postings require the degree to be in a specific specialty. In fact, the posti ng by 
requires "a bachelor's degree in any discipline." 
The petitioner, therefore, has not submitted evidence to establish that a requirement of a bachelor's or 
higher degree in a specific specialty, or its equivalent, is common to the petitioner's industry in 
positions that are both (1) parallel to the proffered position; and (2) located in organizations that are 
similar to the petitioner. 
Consequently, the petitioner has not satisfied the first of the two alternative prongs described at 
8 C.P.R. § 214.2(h)(4)(iii)(A)(2), as the evidence of record does not establish a requirement for at 
3 
(accessed February 4, 2015). 
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least a bachelor's degree in a specific specialty as common to the petitioner's industry in positions 
that are both (1) parallel to the proffered position and (2) located in organizations that are similar to 
the petitioner. 
Next, we find that the petitioner did not satisfy the second alternative prong of 
8 C.F.R. § 214.2( h)(4)(iii)(A)(2), which provides that "an employer may show that its particular 
position is so complex or unique that it can be performed only by an individual with a degree." 
In this particular case, the petitioner has failed to credibly demonstr ate that the duties the 
beneficiary will perform on a day-to-day basis const it ute a position so complex or unique that it can 
only be performed by a person with at least a bachelor's degree, or the equivalent, in a specific 
specialty. 
As reflected in this decision's earlier comment s and findings regarding the absence of evidence 
establishing the substantive nature and substantive knowledge requirements of the proffered 
position and its constituent duties, the record of proceeding does not contain evidence establishing 
relative complexity or uniqueness as aspects of the proffered position, let alone that the position is 
so complex or unique as to require the theoretical and practical application of a body of highly 
specialized knowledge such that a person with a bachelor's or higher degree in a specific specialty 
or its equivalent is required to perform that position. Rather, the AAO finds, the petitioner has not 
distinguished either the proposed duties, or the position that they comprise, from generic 
administrative services manager duties,4 which, the Handbook indicates, do not necessarily require 
a person with at least a bachelor's degree, or the equivalent, in a specific specialty. 
The petitioner therefore failed to establish how the beneficiary's responsibilities and day-to-day 
duties comprise a position so complex or unique that the position can be pe rformed only by an 
individual with a bachelor's degree, or the equivalent, in a specific specialty. 
Consequently, as it has not been shown that the particular position for which this petition was filed 
is so complex or unique that it can only be performed by a person with at least a bachelor's degree, 
or the equivalent, in a specific specialty, the petitioner has not satisfied the second alternat ive prong 
of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The AAO turns next to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), which entails an employer 
demonstr ating that it normally requires a bachelor's degree, or the equivalent, in a specific specialty 
for the position. 
The AAO's review of the record of proceeding under this criterion necessar ily includes whatever 
evidence the petitioner has submitted with regard to its past recruiting and hiring practices and 
employees who previously held the position in question. 
To satisfy this criterion, the record must contain documentary evidence demonstrating that the 
petitioner has a history of requiring the degree or degree equivalency, in a specific specialty, in its prior 
4 Again, we note that the Handbook does not define the duties of a Business Operations Specialist. 
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recruiting and hiring for the position. 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 the performance requirements of the proffered position. In the instant case, the record does not 
establish a prior history of recruiting and hiring for the proposed position only persons with at least 
a bachelor's degree, or the equivalent, in a specific specialty. 
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 employer artificially created a token degree requirement, whereby all individuals 
employed in a particular position possessed a baccalaureate or higher degree in the spe cific 
specialty or its equivalent. See Defensor v. Meissner, 201 F. 3d at 387. In other words, if a 
petitioner's assertion of a particular degree req uirement is not necessitated by the actual 
performance requirements of the proffered position, the position would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)(1) of the Act; 8 C.F.R. § 214 .2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the spe cific 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. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d at 387. In this pursuit, the critical element is not the title 
of the position, or the fact that an employer has routinely insisted on certain educational standards, 
but whether performance of the position actually requires the theoretical and practical application of 
a body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in a 
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 USCIS were constrained to recognize 
a specialty occupation merely because the petitioner has an established practice of deman ding 
certain educational requirements for the proposed position - and without cons ideration of how a 
beneficiary is to be specifically employed - then any alien with a bachelor's degree in a spe cific 
specialty could be brought into the United States to perform non-specialty occupations, so long as 
the employer required all such employees to have baccalaureate or higher degrees. See id. at 388. 
The petitioner claims that the beneficiary is the first individual it has employed in the proffered 
position of business operations specialist, but asserts that because its first petition on behalf of the 
beneficiary was approved, this shows a pattern of hiring sufficient to meet the requirements under 
this prong. While counsel 's argument that the petitioner's current employment of the beneficiary 
merits satisfies this criterion is acknowledged, we do not consider a single previous hire sufficient 
evidence of a past history of employing only persons with at least a bachelor's degree, or the 
equivalent, in a specific specialty to establish eligibility under 8 C.P.R.§ 214.2(h) (4)(iii)(A)(J). 
As the evidence of record has not demonstrated a history of recruiting and hiring only individuals 
with a bachelor's degree, or the equivalent, in a specific specialty for the proffered position, the 
petitioner has not satisfied the criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(J). 
(b)(6)
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Next, the AAO finds that the petitioner has not satisfied the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which requires the petitioner to establish that the nature of the 
proffered position's 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 the specialty. 
As reflected in this decision's earlier comme nts and findings regarding the relatively abstract and 
generalized level at which the proposed duties and the position that they comprise are presen ted in 
this record of proceeding, the AAO finds that the petitioner has not presented the proposed duties in 
sufficiently specific and substantive details to establish any level of relative specialization and 
• 
complexity as an aspect of their nature, and, therefore, there is no evidentiary basis for the AAO to 
find therein the requisite specialization and complexity to satisfy this criterion. 5 
Further, there is the countervailing weight of the wage-level of the LCA. Both on its own terms and 
also in comparison with the three higher wage-levels that can be designated in an LCA, the 
petitioner's designation of an LCA wage-level I is indicative of entry-level skills and 
responsibilities. 
We note that Level I positions are those where the "work is closely monitored and reviewed for 
accuracy." Thus, the position when filled would provide practical experience in the position and 
would be closely supervised and monitored for accuracy by some one else. This undermines the 
petitioner's assertion that the position is so specialized or complex that it requires the attainmen t of a 
bachelor's degree. 
Further, the AAO notes the low level of complexity that this Level I wage-level reflects when 
compared with the three still-higher LCA wage levels, none of which were designated on the LCA 
submitted to support this petition. 
The Prevailing Wage Determination Policy Guidance6 issued by DOL states the following with 
regard to Level II wage rates: 
Level II (qualified) wage rates are assigned to job offers for qualified employees 
who have attained, either through education or experience, a good understand ing 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. 
5 As earlier mentioned, the AAO incorporates into the present ·analysis, and into the analysis of each 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), this decision's earlier comments and findings with regard to the 
evidentiary deficiencies of the petitioner's statements and documentary submissions about the proposed 
duties. 
6 Available at http://www .foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf (last 
visited February 5, 2015) 
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NON-PRECEDENT DECISION 
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The above descriptive summary indicates that this wage-level is appropriate for only "moder ately 
complex tasks that require limited judgment." 
Further, we note the relatively low level of complexity that this Level II wage-level reflects when 
compared with the two still-higher LCA wage levels, neither of which was designated on the LCA 
submitted to support this petition. 
The aforementioned Prevailing Wage Determination Policy Guidance describes the Level III wage 
designation as follows: 
Level III (experienced) wage rates are assigned to job offers for experienced 
employees who have a sound understanding of the occupation and have attained, 
either through education or experience, special skills or knowledge. They perform 
tasks that require exercising judgment and may coordinate the· activities of other 
staff. They may have supervisory authority over those staff. A requirement for years 
of experience or educational degrees that are at the higher ranges indicated in the 
O*NET Job Zones would be indicators that a Level III wage should be considered. 
Frequently, key words in the job title can be used as indicators that an employe r's job 
offer is for an experienced worker ... . 
The Prevailing Wage Determination Policy Guidance describes the Level IV wage designation as 
follows: 
Level IV (fully competent) wage rates are assigned to job offers for competent 
employees who have sufficient experience in the occupation to plan and conduct 
work requiring judgment and the independent evaluation, selection, modification, 
and application of standar d procedures and techniques. Such employees use 
advanced skills and diversified knowledge to solve unusual and complex problems. 
These employees receive only technical guidance and their work is reviewed only for 
application of sound judgment and effectiveness in meeting the establishment's 
procedures and expectations. They gener ally have management and/or supervisory 
responsibilities. 
By virtue of this submission the petitioner effectively attested that the proffered position requires 
"only a basic understanding of the occupation. Furthermore, it requires that the beneficiary exercise 
only "limited, if any" professional judgment, and his work must be closely monitored for accuracy . 
As clear by comparison with DOL's instructive comment s about the next higher level (Level II), the 
proffered position does not even involve "moderately complex," tasks or a "good understanding" of 
the occupation (the level of complexity noted for the next higher wage-level, Level II). 
For all of these reasons, the evidence in the record of proceeding fails to establish that the proposed 
duties meet the specialization and complexity threshold at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
(b)(6)
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As the petitioner has not satisfied at least one of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position is a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition will be denied on this basis. 
IV. PRIOR APPROVAL 
It is noted that the beneficiary currently holds H-lB status. However, 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. If the previous nonimmigrant petition was approved 
based on the same unsupported assertions that are contained in the current record, that approval 
would constitute material and gross error on the part of the director. 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 International, 19 
I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCIS or any agency must 
treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). A prior approval does not compel the 
approval of a subsequent petition or relieve the petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 
26, 1990). A prior approval also does not preclude USCIS from denying an extension of an original 
visa petition based on a reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Furthermore, our authority over 
the service centers is comparable to the relationship between a court of appeals and a district court. 
Even if a service center director had approved nonimmig rant petitions on behalf of a beneficiary, 
we would not be bound to follow the contradictory decision of a service center. Louisiana 
Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff d, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.Ct. 51 (2001). 
V. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.