dismissed H-1B Case: Hotel Management

MATTER OF K-H- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 22, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an operator of a 16-employee hotel, seeks to extend the Beneficiary's temporary 
. employment as its manager of hotel operations under the H-1B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded the Petitioner 
did not establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of K-H- LLC 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex· that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "Manager of Hotel 
Operations." In response to the Director's request for evidence (RFE), the Petitioner provided the 
following job duties for the proffered position: 
• Financial duties and budgeting (50% of the time): This portion of the job duties 
includes conducting market analysis of competitors and a forecast of market 
conditions and fluctuations affecting occupancy rate. Prepare reports regarding 
financial statistics and information on room sales, including sales trends. Review 
balance sheets to verify earnings and expenditures. Project sales and usage for the 
purpose of staying within budget, including comparison of actual and projected sales. 
Oversee accounts receivable and payable. Oversee cost control to make sure that 
variable expenses are controlled and accurate estimates are made, including control of 
labor as well as variable costs, so as to maximize profitability. 
• Sales/Marketing duties (30% of time): We will expect the Manager of Hotel 
Operations to analyze overall occupancy rates and seasonal fluctuations of the hotel 
business. To a certain degree, these duties have some overlap with our financial 
duties, as it is all concerned with making the business as profitable as possible. 
Formulate sales and discount policies and determine market needs, volume potential, 
price schedules and discount rates. Plan and execute advertising policies, review and 
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approve ads before release, and monitor/analyze results of promotional campaigns 
with an eye towards cost effectiveness. 
• Personnel administration (20% of the time): The Manager of Hotel Operations must 
ensure that the employees of the hotel are performing adequately and in accordance 
with company policy to ensure revenue goals. Monitor employees to make sure they 
are following company procedures and policy at all times. Make sure that 
maintenance is being adequately performed and that the housekeeping and front desk 
divisions are performing their duties in a proper and timely manner. Identify the need 
for new employees, interviewing, hiring and training new employees. Make sure that 
guest service procedures as followed by staff are in accordance with company 
standards. Make'sure that any improvements and training are conducted in order to 
maximize both guest satisfaction and orderly hotel operations. 
The Petitioner further stated that the position requires "a minimum of a bachelor's degree in a related 
field" due to the complexity and nature of the position's duties. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.1 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation.2 
As a preliminary matter, we find that the evidence of the Petitioner's operations and the 
Beneficiary's stated duties undermines the Petitioner's assertion that the Beneficiary will be 
primarily performing the duties of a general and operations manager. A review of the Beneficiary's 
duties indicates that the Beneficiary will spend a significant amount of his time performing general 
accounting and bookkeeping duties rather than overseeing such duties. Also, the Petitioner's 
organizational structure reveals that the Beneficiary will oversee a front desk supervisor, a 
housekeeping supervisor, a maintenance engineer, and a breakfast host, but it does not appear that 
there are employees devoted to handling day-to-day earnings, expenditures, accounts receivable and 
payable, and other bookkeeping matters. This discrepancy leaves significant question as to whether 
the Beneficiary will principally act as a general or operations manager overseeing these matters as 
asserted in his duty description. 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
2 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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While no provision in the law for specialty occupations permits the performance of non-qualifying 
duties, we will view the performance of duties that are incidental to the primary duties of the 
proffered position as acceptable when they are unpredictable, intermittent, and of a minor 
nature. Anything beyond such incidental duties, however, e.g., predictable, recurring, and 
substantive job responsibilities, must be specialty occupation duties or the proffered position as a 
whole cannot be approved as a specialty occupation. Assuming, arguendo, that the proffered 
position is in fact a general and operations manager position, however, we will nevertheless perform 
a complete specialty occupation analysis under each of the four, alternative criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A). 
A. First Criterion 
Now, we tum first to the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(l), which requires that a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position. To inform this inquiry, we recognize the U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source 
on the duties and educational requirements of the wide variety of occupations that it addresses.4 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "General and Operations 
Managers" corresponding to the Standard Occupational Classification code 11-1021.5 The 
Handbook discusses general and operations managers in its Top Executives chapter. The Handbook 
states the following about the educational requirements of top executive positions, including general 
and operational manager positions: 
3 The two definitions of "incidental" in Webster's New College Dictionary are "1. Occurring or apt to occur as an 
unpredictable or minor concomitant ... [and] 2. Of a minor, casual, or subordinate nature .... " Incidental, Webster's 
New College Dictionary (3rd ed. 2008). 
4 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USClS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance _Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. Id 
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Matter of K-H- LLC 
Education 
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's degree in business 
administration (MBA). 
College presidents and school superintendents are typically have a master's degree, 
although a doctorate is often preferred. 
Although many mayors, governors, or other public sector executives have at least a 
bachelor's degree, these positions typically do not have any specific education 
requirements. 
Work Experience in a Related Occupation 
Many top executives advance within their own firm, moving up from lower level 
managerial or supervisory positions. However, other companies may prefer to hire 
qualified candidates from outside their organization. Top executives who are 
promoted from lower level positions may be able to substitute experience for 
education to move up in the company. For example, in industries such as retail trade 
or transportation, workers without a college degree may work their way up to higher 
levels within the company to become executives or general managers. 
Chief executives typically need extensive managerial experience. Executives are also 
expected to have experience in the organization's area of specialty. Most general and 
operations managers hired from outside an organization need lower level supervisory 
or management experience in a related field. 
Some gt1neral managers advance to higher level managerial or executive positions. 
Company training programs, executive development programs, and certification can 
often benefit managers or executives hoping to advance. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Top Executives," http://www. bls. gov I ooh/management/top-executives.htm#tab-4 (last visited Nov. 
8, 2016). 
The Handbook does not indicate that a bachelor's degree or the equivalent, in a specific specialty, is 
normally required for entry into a top executive position. Instead, the Handbook finds that these 
positions generally impose no specific degree requirement on individuals seeking employment. The 
statement that "many" top executives, which category includes general and operations managers, have 
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Matter of K-H- LLC 
college degrees is not synonymous with the "normal[] minimwn requirement" standard imposed by this 
criterion. To the contrary, such a statement does not even necessarily indicate that a majority of top 
executives possess such a degree. While the Handbook indicates that top management positions may be 
filled by individuals with a broad range of degrees, its subsequent discussion of the training and 
education necessary for such employment clearly states that companies also hire executives based on 
lower-level experience within their own organizations or management experience with another 
business. Moreover, the Handbook does not state that those positions which do require a bachelor's 
degree or the equivalent require that the degree be in a specific specialty. 
In certain instances, the Handbook is not determinative. When the Handbook does not support the 
proposition that a proffered position is one that meets the statutory and regulatory provisions of a 
specialty occupation, it is incumbent upon the Petitioner to provide persuasive evidence that the 
proffered position more likely than not satisfies this or one of the other three criteria, 
notwithstanding the absence of the Handbook's support on the issue. In such case, it is the 
Petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, 
authoritative sources) that supports a finding that the particular position in question qualifies as a 
specialty occupation. However, here, the Petitioner only indicates on appeal that the Handbook is 
not on its own determinative as to whether an occupation qualifies as a specialty occupation, but 
does not submit other objective evidence to demonstrate that the general and operations manager 
occupation requires a bachelor's degree in a specific specialty. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two, alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. This prong 
alternatively calls for a petitioner to establish that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common for positions that are identifiable as being (1) in the 
petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations that 
are similar to the petitioner. 
As stated earlier, in determining whether there is such a common degree requirement, factors often 
considered by USCIS include: whether the Handbook reports that the industry requires a degree; 
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Matter of K-H- LLC 
whether the industry's professional association has made a degree a minimum entry requirement; and 
whether letters or affidavits from firms or individuals in the industry attest that such firms "routinely 
employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here, as previously discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative sources) reports an industry-wide requirement 
for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. Also, there are no submissions from the industry's 
professional association indicating that it has made a degree a minimum entry requirement. 
Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals 
in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed 
individuals." 
In support of its assertion that a bachelor's degree in a specific specialty is common to the Petitioner's 
industry in parallel positions among similar organizations, the Petitioner submitted copies of four 
advertisements as evidence that the Beneficiary's degree is standard amongst its peer organizations for 
parallel positions in the hotel industry. For instance, the Petitioner submitted a posting for a hotel 
operations manager stating that "the ideal candidate for this position has a bachelor's degree in Hotel 
Management, Business Administration, or a related field (preferred)." Another posting for an 
operations manager at a hotel indicated that the position required "a bachelor's degree in Hotel 
Administration, Business Administration or equivalent," while another reflected that the position 
required a non-specific bachelor's degree and two to three years of experience with the company as a 
manager or as a manager with a similar company. Lastly, the Petitioner provided another hotel 
operations manager posting indicating that the position required "a bachelor's degree in Business 
Management, Hotel Management, Hospitality, or a related field." ' 
In denying the petition, the Director explained that the Petitioner did not indicate how the advertising 
companies were similarly situated when compared· to the Petitioner and noted that the postings 
reflected disparate educational requirements, not a bachelor's or higher degree in a specific 
specialty. In its appeal,' the Petitioner asserts that the Director did not give adequate weight to the 
provided job postings, asserting that they need not be parallel, but merely similar. 
We do not find the Petitioner's assertion on appeal persuasive. In fact, the advertisements provided 
indicate that a bachelor's degree is generally required, but not a bachelor's degree in a specific 
specialty, or its equivalent. For instance, the four position advertisements state that qualified 
applicants could hold bachelor's degrees in business management, hotel management, business 
administration, or in related fields, indicating that a bachelor's degree in a specific specialty is not 
required. And one of the postings reflects that the advertised position required a non-specific 
bachelor's degree. Further, a general degree, or a degree of general applicability, such as a degree in 
business administration, does not establish a position as a specialty occupation. users has 
consistently stated that, although a general-purpose bachelor's degree, such as a degree in business 
administration, may be a legitimate prerequisite for a particular position, requiring such a degree, 
Matter of K-H- LLC 
without more, will not justify a finding that a particular position qualifies for classification as a 
specialty occupation. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 
Further still, each of those vacancy announcements contains an experience requirement, whereas the 
proffered position is designated as wage Level I on the LCA, indicating that it is an entry-level 
position. 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 As 
previously noted, a wage Level I designation on the LCA indicates that the applicant has only a basic 
understanding of the position, that they will only perform routine tasks that require limited, if any, 
exercise of judgment, that they will be closely supervised and their work closely monitored and 
reviewed for accuracy. The differences in the experience requirements for the proffered position and 
the advertised positions indicates that the advertised positions are not parallel to the proffered 
position. 
We also note that the Petitioner has not demonstrated that the advertising companies are similar to 
the Petitioner. The advertisements provided establish, at best, that a bachelor's degree is generally 
required, but not at least a bachelor's degree in a specific specialty, or its equivalent. In addition, 
even if all of the job postings indicated that a bachelor's or higher degree in a specific specialty, or 
its equivalent, was required, the Petitioner has not established that the submitted advertisements are 
relevant, or parallel positions in similar organizations in the same industry.6 
Thus, the Petitioner has not satisfied the first alternative prong of8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
6 According to the Handbook's detailed statistics on general and operations managers, there were approximately 
2,275,200 persons employed in this occupation in 2014. Handbook, 2016-17 ed., 
http://www.bls.gov/ooh/management/top-executives.htm#tab-6 (last visited Nov. 8, 2016). Based on the size of this 
relevant study population, the Petitioner does not demonstrate what statistically valid inferences, if any, can be drawn 
from just four job postings with regard to the common educational requirements for entry into parallel positions in 
similar organizations in the hotel industry. See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 
1995). Moreover, given that there is no indication that the advertisements were randomly selected, the validity of any 
such inferences could not be accurately determined even if the sampling unit were sufficiently large. See id. at 195-96 
(explaining that "[r]andom selection is the key to [the] process [of probability sampling]" and that "random selection 
offers access to the body of probability theory, which provides the basis for estimates of population parameters and 
estimates of error"). 
As such, even if the job announcements supported the finding that the position required a bachelor's or higher degree in 
a specific specialty, or its equivalent (for organizations in the same industry that are similar to the Petitioner), it cannot 
be found that such a limited number of postings that appear to have been consciously selected could credibly refute the 
findings of the Handbook published by the Bureau of Labor Statistics that such a position does not normally require at 
least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. 
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(b)(6)
Matter of K-H- LLC 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
The Petitioner also does not satisfy the second alternative prong of8 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." To begin 
with and as discussed 
previously, the Petitioner itself does not require at least a baccalaureate degree in a specific 
specialty, or its equivalent. Furthermore, 
the record does not sufficiently develop relative 
complexity or uniqueness as an aspect of the proffered position of a general and operations manager. 
Specifically, even though the Petitioner claims that the proffered position's duties are so complex 
and unique that a bachelor's degree is required, the Petitioner does not demonstrate how the duties of 
the manager of hotel operations require the theoretical and practical application of a body of highly 
specialized knowledge such that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is required to perform them. For instance, the Petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the duties it claims are so complex and unique. While a few 
related courses may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. 
The evidence of record does not establish that this position is significantly different from other 
general and operations manager positions such that it refutes the Handbook's information to the 
effect that there is a spectrum of preferred degrees acceptable for general and operations manager 
positions, including degrees not in a specific specialty. In other words, the record lacks sufficiently 
detailed information to distinguish the proffered position as unique from or more complex than other 
general or operations managers or other closely related positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
In the appeal brief, the Petitioner states that it operates in a "vital location for travelers 
who are 
visiting from the However, the Petitioner does not articulate or 
document how the Beneficiary's employment as a manager at this location involves duties would be 
complex or unique relative to other general and operations manager positions that do not require at 
least a baccalaureate degree in a specific specialty, or its equivalent, for entry into the occupation in 
the United States. As the Petitioner has not demonstrated how the proffered position is so complex 
or unique relative to other such positions that do not require at least a baccalaureate degree in a 
specific specialty, or its equivalent, for entry into the occupation in the United States, it cannot be 
concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
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Matter of K-H- LLC 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
To satisfy this criterion, the record must establish that the specific performance requirements of the 
position generated the recruiting and hiring history. A petitioner's reference to the Beneficiary's 
particular educational 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 384. In this pursuit, the critical element is not the title of the position, or the fact that an 
employer has routinely insisted on certain educational standards, but whether performance of the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, or its 
equivalent, as the minimum for entry into the occupation as required by section 214(i)(l) of the Act. 
According to the Court in Defensor, "To interpret the regulations any other way would lead to an 
absurd result." !d. at 388. If USCIS 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 beneficiary 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. 
The Petitioner provided evidence reflecting that its owner formerly acted in the Beneficiary's 
proffered position from October 2009 to May 2011 and that he holds a bachelor's degree in 
electronics and communications and a master's degree in computer science. The Petitioner further 
references another employee who "briefly" acted in this role from May 2011 to August 2011, and 
states that he had earned a master's degree in business administration. In addition, the Petitioner 
indicates that it employed managers of hotel operations at other locations holding "at least a 
Bachelor's (and in fact an MBA) degree in business." 
As noted above, a degree with a generalized title, such as business administration, without further 
specification, is not a degree in a specific specialty. Cf Matter of Michael Hertz Assocs., 19 I&N 
Dec. 558 (Comm'r 1988). As such, an educational requirement that may be satisfied by an 
otherwise undifferentiated bachelor's or higher degree in business administration is not a 
requirement of a minimum of a bachelor's degree in a specific specialty, or its equivalent. Without 
more, the Petitioner's suggestion that the proffered position requires a bachelor's or higher degree in 
business administration, without specifying any specialty within that general subject, indicates that it 
does not normally require a bachelor's degree in a specific specialty, or its equivalent, for the 
position. 
Moreover, the Petitioner's claim that its owner, who has degrees in electronics, communications, and 
computer science, and its previous employee who holds a "degree in business" performed the duties 
of the proffered position suggests that the Petitioner does not normally require a bachelor's or higher 
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Matter of K-H- LLC 
degree in a specific specialty. It has not been shown that the degrees held by the owner and its 
previous employee denote a requirement in a singular specialty or closely related specialties directly 
related to the duties and responsibilities of the particular position. 
Here, the Petitioner has not established the referenced criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J) 
based on its normal hiring practices. 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner has not satisfied the fourth criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), which is 
reserved for positions with specific duties so specialized and complex that their performance 
requires knowledge that is usually associated with the attainment of a baccalaureate or higher degree 
in a specific specialty, or its equivalent. Again, relative specialization and complexity have not been 
sufficiently developed by the Petitioner as an aspect of the proffered position. In other words, the 
proposed duties have not been described with sufficient specificity to show that they are more 
specialized and complex than general and operations manager positions that are not usually 
associated with at least a bachelor's degree in a specific specialty, or its equivalent. 7 
We also incorporate our earlier discussion and analysis regarding the duties of the proffered position, 
and the designation of the position in the LCA as a Level I position (the lowest of four assignable 
wage-levels) relative to others within the same occupational category. 8 The Petitioner has not 
demonstrated that its proffered position is one with duties sufficiently specialized and complex to 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
7 The Petitioner has designated the proffered position as a Level I position on the submitted LCA, indicating that it is a 
position for an employee who has only a basic understanding of the occupation and is expected to perform routine tasks 
that require limited, if any, exercise of judgment. 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 Therefore, it does not appear 
that the position is one with specialized and complex duties, as such a higher-level position would be classified as a 
Level III or Level IV position, requiring a significantly higher prevailing wage. 
8 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
LevellY wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage-level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) oftheAct. 
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Matter of K-H- LLC 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
E. Prior Approvals 
Lastly, on appeal, the Petitioner emphasizes that there has been no change in circumstances from 
two previously approved H-1B petitions filed on behalf of the Beneficiary in 2011 and 2014. The 
Petitioner references an April 23, 2004, memorandum authored by William R. Yates (Yates memo) 
and asserts that USCIS' prior approvals "strongly support continued approval of this case." 
Memorandum from William R. Yates, Associate Director for Operations, The Significance of a Prior 
CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding 
Eligibility for Extension of Petition Validity, HQOPRD 72111.3 (Apr. 23, 2004). 
First, it must be noted that the Yates memo specifically states as follows: 
. . . Adjudicators are not bound to approve subsequent petitions or applications 
seeking immigration benefits where eligibility has not been demonstrated, merely 
because of a prior approval which may have been erroneous. Matter of Church 
Scientology International, 19 I&N 593, 597 (Comm. 1988). Each matter must be 
decided according to the evidence of record on a case-by-case basis. See 8 C.F.R. 
§ 103.8(d) . 
. . . Material error, changed circumstances, or new material information must be 
clearly articulated in the resulting request for evidence or decision denying the benefit 
sought, as appropriate. 
Thus, the Yates memo does not advise adjudicators to approve an extension petition when the facts 
of the record do not demonstrate eligibility for the benefit sought. On the contrary, the 
memorandum's language quoted immediately above acknowledges that a petition should not be 
approved where, as here, the Petitioner has not demonstrated that the petition should be granted. 
Again, as indicated in the Yates memo, we are not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g., Matter of Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988). If 
the two previous nonimmigrant petitions were approved based on the same description of duties and 
assertions that are contained in the current record, they would constitute material and gross error on 
the part of the Director. It would be unreasonable for USCIS or any agency to treat acknowledged 
errors as binding precedent. Sussex Eng'g, 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. Temporary Alien Workers Seeking Classification 
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Matter of K-H- LLC 
Under the Immigration and Nationality Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be 
codified at 8 C.F.R. pt. 214). 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 Tex. A&M Univ. v. Upchurch, 99 F. App'x .. 556 (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 nonimmigrant petitions on behalf of a 
beneficiary, we would not be bound to follow the contradictory decision of a service center. See La. 
Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
Second, the memorandum clearly states that each matter must be decided according to the evidence 
of record. Copies of these petitions, however, were not included in the record and, therefore, this 
claim is without merit. If the Petitioner wished to have prior decisions considered by US CIS in its 
adjudication of a petition, it is permitted to submit copies of such evidence that it either obtained 
itself and/or received in response to a Freedom of Information Act request filed in accordance with 
the applicable regulations. Otherwise, "[t]he non-existence or other unavailability of required 
evidence creates a presumption of ineligibility." 8 C.F.R. § 103.2(b)(2)(i). 
When "any person makes application for a visa or any other document required for entry, or makes 
application for admission, ... the burden of proof shall be upon such person to establish that he is 
eligible" for such benefit. Section 291 of the Act, 8 U.S.C. § 1361; see also Matter of Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972). Each nonimmigrant and immigrant petition 
is a separate record of proceedings with a separate burden of proof. Each petition must stand on its 
own individual merits. There is no requirement either in the regulations or in USCIS procedural 
documentation requiring nonimmigrant petitions to be combined in a single record of proceedings. 9 
Accordingly, the Director was not required to request and obtain a copy of the prior H-1B petitions. 
Again, the Petitioner in this case has not submitted copies of the prior H-1B petitions and their 
respective supporting documents and approval notices. As the record of proceedings does not 
contain any evidence of these petitions, there were no underlying facts to be analyzed and, therefore, 
no prior, substantive reasons could have been provided to explain why deference to the approvals of 
the prior two H-1B petitions was not warranted. The burden of proving eligibility for the benefit 
sought remains entirely with the Petitioner. Section 291 of the Act. For this additional reason, the 
Yates memo does not apply in this instance. 
9 USCIS does not engage in the practice of reviewing previous nonimmigrant petitions when adjudicating extension 
petitions. Given the various and changing jurisdiction over various nonimmigrant petitions and applications, requiring 
previously adjudicated nonimmigrant petitions to be reviewed before any newly filed application or petition could be 
adjudicated would result in extreme delays in the processing of petitions and applications. Furthermore, such a 
suggestion, while being impractical and inefficient, would also be a shift in the evidentiary burden in this proceeding 
from the Petitioner to USC IS, which would be contrary to section 291 of the Act, 8 U .S.C. § 1361. 
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Matter of K-H- LLC 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-H- LLC, ID# 118490 (AAO Nov. 22, 2016) 
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