dismissed H-1B Case: Hotel Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 13907771 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 19, 2021 
The Petitioner, a hotel and lodging company, seeks to temporarily employ the Beneficiary as a "hotel 
general manager" under the H-lB nonimmigrant classification for specialty occupations. Immigration 
and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C . § 1101(a)(15)(H)(i)(b). The H-lB 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the proffered position is a specialty occupation. On appeal, the Petitioner submits a brief 
and asserts that the Director erred by denying the petition. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 1 We review the questions in this matter de nova. 2 We exercise de 
nova review of all issues of fact, law, policy, and discretion. 3 This means that we look at the record 
anew and are not required to defer to conclusions made in previous decisions. 4 Furthermore, our 
decision may address new issues that were not raised or resolved in prior decisions. Upon de nova 
review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-IB nonirnrnigrant as a foreign national "who is 
1 Section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369,375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
3 See Matter of Dhanasa r, 26 I&N Dec. 884 (AAO 2016). 
4 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 Matter of Church Scientology Int '!, 19 I&N Dec. 593, 597 (Comm'r 
1988); see also Sussex Eng 'g, Ltd. v. Montgomery , 825 F .2d 1084, 1090 ( 6th Cir. 1987). Furthermore, we are not be bound 
to follow a contradictory decision of a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, 
at *2 (E.D. La. 2000). 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). 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: 
( 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). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. 5 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record (1) does not describe the position's duties with sufficient detail; and (2) does 
not establish that the job duties require an educational background, or its equivalent, commensurate 
with a specialty occupation. 6 In particular, we find that three separate factors independently bar 
approval of this petition: (1) inconsistent minimum degree requirements and job duties; (2) the 
Petitioner's lack of a requirement for a bachelor's degree in a specific specialty, or the equivalent; and 
5 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"). 
6 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. 
2 
(3) the Petitioner's failure to satisfy at least one of the four regulatory specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 
The Petitioner initially provided the position's description and expanded on those duties in response 
to the Director's request for evidence (RFE) and with their appeal brief For the sake of brevity, we 
will not quote the descriptions; however, we have closely reviewed and considered the duties. 
According to the Petitioner's initial petition submission, the proffered position requires a minimum of 
a bachelor's degree. In the subsequent RFE response, the Petitioner specified the position requires a 
bachelor's degree or its equivalent in business administration, business management, hotel 
management, or a closely related major. 
1. Inconsistent Minimum Degree Requirements and Job Duties 
We observe discrepancies in the record that undermine the overall credibility of this petition. As 
noted, the Petitioner stated in its April 2019 submission letter that the proffered position hires "only 
those candidates possessing a minimum of a [b ]achelor's degree." In other words, the Petitioner 
indicated that an individual would qualify for the position so long as he or she possesses a bachelor's 
degree, regardless of the field of study. In their RFE response, the Petitioner states the position 
requires a minimum of a bachelor's degree or its equivalent in business administration, business 
management, hotel management, or a closely related major. The Petitioner did not provide any 
explanation as to why a more specific set of degrees was now acceptable compared to their initial 
general bachelor's degree requirement. 
The evolving nature of the Petitioner's minimum entry requirement is problematic. When it filed the 
petition, the Petitioner did not indicate that it was necessary for the requisite bachelor's degree to be 
in any particular field of study, and it only began tightening its entry requirement in response to the 
RFE. A visa petition may not be approved based on speculation of future eligibility or after the 
Petitioner or Beneficiary becomes eligible under a new set of facts. 7 A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. 8 It appears as though the Petitioner amended its original, less-stringent minimum to 
meet the requirements of the H-lB program. 
Also, the Petitioner submitted four distinct versions of the job duties: (1) the duties specified in the 
July 24, 2019 support letter and the March 16, 2020 letter froml I (2) the 
duties from the July 25, 2019-signed offer of employment letter; (3) the duties fr9m Counsel's May 1, 
2020 RFE response letter; and (4) the job duties included with the Petitioner's appeal. Although most 
duties are consistent throughout each version, several duties only appear in certain versions or are 
modified in others. While some of these modifications appear minor, the missing duties suggest the 
Beneficiary's responsibilities differ depending on the version of job duties. For example, the May 1, 
2020 version includes the financial and marketing duties of"[ d]irect and coordinate financial/budget 
activities to maximize investments and increase efficiencies" and "[ d]evelop and implement service­
marketing strategies, including advertising campaigns or sales promotions," which are not found in 
other versions. The July 25, 2019 employment offer letter includes the unique duties of "[k]now area 
7 See 8 C.F.R. § 103.2(b)(l); see also Matter of Michelin Tire Co1p., 17 l&N Dec. 248,249 (Reg'l Comm'r 1978). 
8 SeeMatteroflzummi. 22 l&NDec. 169,176 (Assoc. Comm'r 1998). 
3 
attractions and services in order to accommodate resident's needs" and "[e]nsure proper uniform 
standards are followed through departments." Also, only the May 2020 and appeal versions of the 
duties provide any indication of how much time is spent on each duty. The May 2020 version groups 
several duties under a heading and assigns the percentage of time assigned for the duties by that 
heading. However, the appeal job duties assigns the time spent to each individual duty or to a different 
combination of duties than the May 2020 groupings. In some instances, the percentages in time spent 
on duties do not appear to match between these two versions. In addition, any inconsistencies to these 
versions of the duties are problematic when trying to determine how much time is spent on a duty, 
especially if the duties do not appear in either the May 2020 or the appeal version. The Petitioner 
provides no explanation for the discrepancies. The Petitioner must resolve inconsistencies with 
independent, objective evidence pointing to where the truth lies. 9 Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. 10 
These inconsistencies raise significant doubts as to the overall credibility of this petition and, for this 
reason alone, we conclude that the proffered position is not a specialty occupation. Even if we were 
to set these inconsistencies aside, we would still dismiss the appeal because the Petitioner does not 
require a bachelor's degree in a specific specialty. 
2. Lack of a Requirement for a Bachelor's Degree in a Specific Specialty, or the Equivalent 
That the Petitioner would find acceptable a bachelor's degree in business administration, with no 
further specialization, also alone precludes a determination that the position involves a "body of highly 
specialized knowledge" or that it requires the attainment of a bachelor's degree in a "specific 
specialty." The First Circuit Court of Appeals explained in Royal Siam, 484 F.3d at 147, that: 
The courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not 
justify the granting of a petition for an H-lB specialty occupation visa. See, e.g., Tapis 
Int'lv. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-
66; cf Matter o_f Michael Hertz Assocs., 19 I & &N Dec. 558, 560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar 
provision). This is as it should be: elsewise, an employer could ensure the granting of 
9 See Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
io Id. 
4 
a specialty occupation visa petition by the simple expedient of creating a generic (and 
essentially artificial) degree requirement. 11 
For this reason alone, the record satisfies neither the statutory nor the regulatory definitions of the term 
"specialty occupation," and we could end our analysis here and dismiss the appeal on that basis. But 
we will not do so, because even if we were to set the issue of the "business administration" degree 
aside we would still dismiss the appeal because the evidence of record does not satisfy any of the four 
specialty-occupation criteria. 
3. The Specialty-Occupation Criteria Enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4) 
a. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
11 Id. But see India House , Inc. v. McAleenan, 449 F. Supp. 3d 4 (D.R.I. 2020) . In India House the court distinguished 
Roya l Siam on factual grounds but did not dispute its central reasoning: that a position whose duties can be fulfilled by an 
individual with a general-purpose bachelor 's degree in business administration is not a specialty occupation . Instead , it 
distinguished Roya l Siam on factual grounds. Here , the Petitioner specifically recognizes an unspecialized bachelor's 
degree in business administration as being one of the degrees it considers as providing an adequate preparation to perform 
the duties of the proffered position . 
The agency has longstanding concerns regarding general-purpose bachelor 's degrees in business administration with no 
additional specialization. For example , in Matter of Ling, 13 I. & N. Dec . 35 (Reg'! Comm'r 1968), the agency stated that 
attainment of a bachelor 's degree in business administration alone was insufficient to qualify a foreign national as a 
member of the professions pursuant to section 10l(a)(32) of the Act, 8 U.S.C. § l 10l( a)(32) . Twenty years later , the 
agency looked to the nature of the position itself and clarified that a requirement for a degree with a generalized title, such 
as business administration , without further specification, was insufficient to qualify the position as one that is profession al 
pursuant to section 10l(a)(32) of the Act. Michael Hertz Assocs ., 19 I&N Dec. at 560. See also Matter of Caron Int '/, 
Inc., 19 I&N Dec . 791 (Comm'r 1988) (vice president for manufacturing in a textile company was not a professional 
position because individual holding general degree in business , engineering or science could perform its duties). 
Congress created the modern H-lB program as part of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. 
In doing so, it pivoted away from the prior H-1 standard of whether a position was "professional." Instead , petitioners 
were now required to demonstrate that a proffered position qualified as a "specialty occupation ." Section 
101 (a)(l 5)(H)(i)(b) of the Act. In the final rule setting forth the requirements for the revamped H-lB program , the agency , 
responding to commenters suggesting that the proposed regulatory "specific specialty" requirement "was too severe and 
would exclude certain occupations from classifications as specialty occupations," stated that " [t]he definition of specialty 
occupation contained in the statute contains this requirement." Temporary Alien Workers Seeking Classification Under 
the Immigration and Nationality Act, 56 Fed. Reg . 61 I 11, 61112 (Dec. 2, 1991). 
The agency ' s concerns regarding a general-purpose , non-specific bachelor 's degree in business , or business administration, 
continued under the revamped H-lB program. See, e.g., Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999); Royal 
Siam , 484 F.3d at 147; 2233 Paradise Road, LLC v. Cissna, No. 17-cv- 01018 -APG- VCF , 2018 WL 3312967 (D. Nev., 
July 3, 2018);XiaoTong Liu v. Baran, No . 18-00376-JVS, 2018 WL 7348851 (C.D . Cal., Dec. 21, 2018); ParzennPartners 
v. Baran , No . 19-cv-11515-ADB, 2019 WL 6130678 (D. Mass., Nov . 19, 2019); Vision Builders , LLC v. USCIS, No. 19-
3159 , 20 WL 5891546 , at *4 (D.D.C., Oct. 5, 2020). 
To the extent the Petitioner is arguing that a bachelor's degree in business administration, with no further specialization 
( or the equivalent) , is a bachelor ' s degree in a specific specialty, then consistent with agency history and federal case law, 
we must disagree. 
5 
entry into the particular position. 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. 12 
On the labor condition application (LCA)13 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category "General and Operations Managers" 
corresponding to the Standard Occupational Classification (SOC) code 11-1021. 
The Handbook's discussion of the duties and entry requirements for "General and Operations 
Managers" is contained within its discussion of the 'Top Executives" occupational category. 14 The 
Handbook does not indicate that a bachelor's degree in a specific specialty, or its equivalent, is 
normally required for entry into these positions. Instead, the Handbook indicates that these positions 
generally impose no specific degree requirement on individuals seeking employment. It states that 
education and training for positions located within this occupational category have a bachelor's degree 
or master's degree in the area of their field of work," and that some individuals may be able to 
substitute work experience for education. 
The Handbook also states that these positions may possess a degree in business administration which 
is not a bachelor's degree in a specific specialty. A petitioner must demonstrate that the proffered 
position requires a precise and specific course of study that relates directly to the position in 
question. Since there must be a close correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title, such as business administration, without 
further specification, does not establish the position as a specialty occupation. 15 To prove 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. As explained earlier, we 
interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a degree in a specific 
specialty that is directly related to the proposed position. We have 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, without more, will not justify a 
conclusion that a particular position qualifies for classification as a specialty occupation. 16 
12 We do not 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 we regularly review 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. 
13 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCTS) to 
demonstrate that it will pay the Beneficiary the higher of either the prevailing wage for the occupational classification in 
the "area of employment" or the actual wage paid by the employer to other employees with similar experience and 
qualifications who are perfmming the same services. Section 212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 
14 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Top Executives 
https://www.bls.gov/ooh/management/top-executives.htm (last visited Mar. 18, 2021 ). 
15 Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988). 
16 Royal Siam Co1p., 484 F.3d at 147. See also Irish Help at Home LLC v. Melville, 13-cv-00943-MEJ, 2015 WL 848977 
(N.D. Cal. Feb. 24, 2015), aff'd, 679 F. App'x 634 (9th Cir. 2017); Vision Builders, 20 WL 5891546, at *4. 
6 
The Handbook therefore does not support the assertion that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for these positions and does not 
support the particular position proffered here as being a specialty occupation. 
Moreover, DOL's Occupational Information Network (O*NET) survey indicates that twenty-nine 
percent of respondents in the SOC 11-1021 occupation have a minimum of a bachelor's degree, fifteen 
percent of individuals holding jobs within the "General and Operations Managers" occupational category 
possess a high school diploma or equivalent, and another nineteen percent took some college coursework 
but did not graduate.17 In other words, a majority of respondents reported that they did not possess a 
bachelor's degree, let alone one in a specific specialty. When the Handbook statements are read in 
conjunction with DO L's O*NET survey results the efficacy of the Petitioner's claim that a bachelor's 
degree in a specific specialty is normally required for this occupation is significantly diminished. 18 In 
addition, O*NET does not demonstrate that the twenty-nine percent who have a bachelor's degree have 
a degree in a specific specialty as required by the statutory and regulatory definitions, because the data 
does not report the particular type of degree, if any, held by the respondents. 19 This farther undermines 
the Petitioner's argument that the norm is to have a bachelor's degree in a specific specialty to perform 
the duties of this entry-level position. 
The Petitioner cites Next Generation Tech., Inc. v. Johnson 20 as relevant here and uses it to support a 
conclusion concerning the meaning of what is "normally" the minimum requirement for the position. 
We question the applicability of Next Generation Tech., Inc. in the instant matter, as it analyzed our 
reading of the Handbook concerning the entry requirements for positions located within a different 
and separate occupational category of "Computer Programmers." 21 Moreover, while the Handbook 
may establish the first regulatory criterion for certain professions, 22 the Handbook does not establish 
the criterion for many others. As just discussed, neither the Handbook nor O*NET include sufficient 
information regarding this occupation to conclude that the occupation is a specialty occupation under 
the first criterion. 
The Petitioner also cites to Raj and Co. v. USCIS, 85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015) and 
Tapis Int'! v. INS, 94 F. Supp. 2d 172 for the proposition that the proffered position is a specialty 
occupation because it requires "a bachelor's degree or equivalent or specialized training." In this case, 
the Petitioner argues that the proffered position is a specialty occupation, because the bachelor's 
degree requirement is equivalent to specialized training in management. However, it appears that the 
17 U.S. Dep't of Labor, Occupational Information Network, General and Operations Managers, at 
https://www.onetonline.org/link/details/l l-1021.00 (last visited Mar. 18, 2021). 
18 We note that the O*NET survey accounts for only 63% of these workers. According to O*NET, 29% possess a 
bachelor's degree, 19% took some college classes but did not graduate, and 15% possess a high school diploma or the 
equivalent. It does not account for the remaining 37%. Id. Accordingly, the figure for those who possess less than a 
bachelor's degree may be even higher. 
19 Nor is it apparent that these individuals' credentials were hiring prerequisites. Id. 
20 Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252 (S.D.N.Y. Sept. 29, 2017). 
21 O*NET data for the "Computer Programmer" occupation shows 88% of respondents have a bachelor's degree compared 
to the aforementioned 29% ofrespondents for the General and Operations Managers. The disparity in respondents having 
a bachelor's degree between the occupations demonstrates the occupations are not analogous and thus significantly lessens 
the relevance of Next Generation Tech .. Inc. to the matter at hand. 
22 Such professions would include surgeons or attorneys, which indisputably require at least a bachelor's degree for entry 
into the occupation. 
7 
Petitioner misinterprets Raj and Tapis and confuses the equivalency of a beneficiary's qualification 
with the issue of a particular position's actual minimum entry requirements. In other words, the test 
to establish a position as a specialty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself qualifies as a specialty occupation. Thus, whether or not 
the Beneficiary in this case has completed specialized training or work experience directly related to 
the proffered position is irrelevant to the issue of whether the proffered position qualifies as a specialty 
occupation, i.e., whether the duties of the proffered position require the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's degree or 
higher in a specific specialty, or its equivalent. 23 
In Tapis, the U.S. district court found that while the former Immigration and Naturalization Service 
(INS) was reasonable in requiring a bachelor's degree in a specific field, it abused its discretion by 
ignoring the portion of the regulations that allows for the equivalent of a specialized baccalaureate 
degree. According to the U.S. district court, INS's interpretation was not reasonable because then H-
1B visas would only be available in fields where a specific degree was offered, ignoring the statutory 
definition allowing for "various combinations of academic and experience based training." 24 The 
court elaborated that "[i]n fields where no specifically tailored baccalaureate program exists, the only 
possible way to achieve something equivalent is by studying a related field ( or fields) and then 
obtaining specialized experience." 25 
We agree that, if the requirements to perform the duties and job responsibilities of a proffered position 
are a combination of a general bachelor's degree and experience such that the standards at both section 
214(i)(l)(A) and (B) of the Act have been satisfied, then the proffered position may qualify as a 
specialty occupation. We do not conclude, however, that the U.S. district court is stating that any 
position can qualify as a specialty occupation based solely on the claimed requirements of a petitioner. 
Instead, we must examine the actual employment requirements, and, on the basis of that examination, 
determine whether the position qualifies as a specialty occupation. 26 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. In this instance, the Petitioner has famished no evidence to establish that the facts of the 
instant petition are analogous to those in Tapis. In particular, the Petitioner does not specify that the 
proffered position requires a bachelor's degree in business administration and specialized work 
experience. 27 As such, the proffered position is not similar to the one discussed in Tap is. 
We also note that, in contrast to the broad precedential authority of the case law of a United States 
circuit court, we are not bound to follow the published decision of a United States district court in 
23 Section 214(i)(l) ofthe Act; 8 C.F.R. ~ 214.2(h)(4)(ii). 
24 Tapis Int 'I, 94 F. Supp. 2d at 176. 
25 Id. at 177. 
26 See generally Defensor v. Meissner, 201 F. 3d 384. 
27 Moreover, it is worth highlighting once again our previous discussion of the inconsistencies regarding the petition's 
duties and minimum entry requirements. 
8 
matters arising even within the same district. 28 Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before us, the analysis does not have to 
be followed as a matter oflaw. 29 
The Petitioner has not provided other evidence that at least a bachelor's degree is the normal minimum 
requirement for entry into this position. As the foregoing demonstrates, the Petitioner has not provided 
sufficient documentation from a probative source to substantiate its assertions regarding the normal 
minimum requirement for entry into this particular position. Thus, the Petitioner has not satisfied the 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I). 
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 contemplates 
common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 30 
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. 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: 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 establish that such firms "routinely employ and 
recruit only degreed individuals." 31 
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. 
Next we will review the opinion letter o±1 I a professor of finance and economics at 
Ouniversity, who wrote regarding industry hiring requirements for the Petitioner's particular 
position. The author describes his experience as a professor, researcher, and industry expert and 
concludes that it is common for positions similar to the one proffered here to require at least a 
bachelor's degree. I I states that based upon his experience and background as a 
professor, the "common industry practice for hospitality companies requiring senior-level hotel 
managers, such as [the Petitioner], [is] to hire for such positions from bachelor's-level programs in 
28 See Matter of K-S-, 20 T&N Dec. 715, 719-20 (BIA 1993). 
29 Id. 
30 We will discuss the second prong of the second criterion in subsection d, infra. 
31 Shanti, Inc., 36 F. Supp. 2d 1151, 1165 (quoting Hird/Blaker Co1p. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) 
( considering these "factors" to inform the commonality of a degree requirement)). 
9 
[b ]usiness [ a ]dministration, [b ]usiness [ m ]anagement, [h ]otel [ m ]anagement, or a related field." The 
professor further asserts that this degree requirement is the normal minimum requirement for entry 
into the proffered position and similar positions among industry professionals and educators. In 
stating that an individual with a bachelor's degree m business administration, with no further 
specialization, can perform the duties of the position, confirms that the proffered 
position is not a specialty occupation. Moreover.I I does not offer probative evidence 
to support his conclusion. Whilel I may have anecdotal information based on his 
experience as a professor, researcher, and expert in the industry, he does not indicate he has published, 
conducted research, or run surveys regarding the minimum education requirements for positions such as 
the position proffered here. He does not discuss any relevant research, studies, or other authoritative 
publications he utilized as part of his review and foundation for his opinion that there is an industry 
standard for 'hotel general manager" positions. As such,I ts letter has not demonstrated 
that a degree requirement in a specific specialty is common to the industry. 
Next, we will review the job postings submitted by the Petitioner with their appeal.32 To be relevant for 
consideration under this prong, the descriptions on the job postings must describe positions that are 
parallel to the proffered position and the job postings must have been placed by organizations that (1) 
conduct business in the Petitioner's industry and (2) are also "similar" to the Petitioner. Absent such 
evidence, job postings submitted by the Petitioner are generally outside the scope of consideration for 
this prong, which encompasses only organizations that are similar to the Petitioner. 
Although the Petitioner provides job postings for other "general managers," they have not 
demonstrated that the advertising organizations are similar to them. When determining whether the 
Petitioner and the organization share the same general characteristics, a few elements that may be 
considered include information regarding the nature or type of organization, and, when pertinent, the 
particular scope of operations, as well as the level of revenue and staffing. Neither the Petitioner nor 
the job postings provide any evidence that these organizations are similar with the same general 
characteristics. The postings appear to be from companies that provide hotel services, but without 
more, these companies cannot be determined to be similar to the Petitioner. For example, we cannot 
determine if these companies have the same number of employees or have the same gross income. 
However, even if we concluded that these companies were similar organizations within the same 
industry, we would still conclude that the Petitioner had not established that the nature of the positions 
advertised in the job postings are parallel to those of the proffered position. 
Our review of the job postings confirms that these positions are different and are not "parallel" to the 
Petitioner's position. The proffered position requires no experience; however most of the advertised 
positions require experience, some substantial. 33 Specifically, one job posting requires at least two to 
five years of experience. Another job posting requires three to five years of experience, while one 
requires four to six years of experience. Two other job postings require at least five years of 
experience. The proffered position requires at least a bachelor's degree, but two of the postings accept 
either education or experience for entry into the positions. In particular, one of the job postings 
indicates the employer is willing to accept six years of experience, a four-year college degree with at 
32 On appeal, the Petitioner asserts the Director failed to review these job postings with his decision. However. according 
to the record, none of these job postings appear to have been submitted by the Petitioner prior to their appeal. 
33 If these are in fact parallel positions, then we would question whether the wage-level specified on the LCA was correct. 
10 
least four years of related experience, or a two-year college degree with at least five years of 
experience. In one posting, the employer only require three years of experience to enter the position. 
Also, another posting will accept any bachelor's degree, and not the Petitioner's requested degree of 
business administration, business management, hotel management, or related. These very different 
minimum entry requirements suggest that the nature of the advertised positions differs from those of 
the proffered position and that, as such, these job postings do not advertise a "parallel position" to the 
proffered position. 34 
Even if all of the job descriptions and requirements on the job postings indicated that a requirement of 
a bachelor's degree in a specific specialty is common to the industry in parallel positions among similar 
organizations (which they do not), the Petitioner does not demonstrate what statistically valid 
inferences, if any, can be drawn from the job postings with regard to the common educational 
requirements for entry into parallel positions in similar organizations. 35 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. 36 
Although not discussed on this section of the appeal, the Petitioner also provided three letters from 
related industry entities: (l).__ ____ ~-----,,,4 a "leading management company"; (2)1 I 
Hotels, a "foll-service hotel ownership and management company"; and (3) thd !Hotel 
Owners Associationl._ ___ ...,D, a hotel owner association. All three letters assert that the proffered 
position of "hotel general manager" requires a minimum of a bachelor's degree, or the equivalent, in 
hospitality management, business management, business administration, or closely related field. 
However, none of the letter-writers provide any evidence or data to support their assertions that the 
educational requirement is an industry-wide standard. In addition, some language on the letters 
appears to be templated with similar language found across all three letters. This similar language and 
lack of individualized analysis provides doubt to the probative value of each letter. The I I I I and D letters also do not discuss their parallel positions or provide any evidence how 
they are similar to the Petitioner. As such, none of these letters provide substantive evidence that a 
degree requirement is common within the industry. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. 37 
Finally, the Petitioner argues proper weight was not given to the educational evaluation byl I .___~I ofl ~- The educational evaluation compares how the 
Beneficiary's education, training and experience is equivalent to a bachelor's degree in science and 
management; however, this document does not provide any insight or discuss why a bachelor's degree 
is common to the industry in parallel positions among similar organizations. I l's evaluation 
34 If these are in fact parallel positions as claimed, the range of requirements undermines the Petitioner's claim that a 
bachelor's in a specific specialty is an industry standard. 
35 See generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). 
36 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"). 
37 Matter of Caron Int'/, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). In accordance with Caron Int'!, we hereby decline 
to assign these letters any significant evidentiary weight. 
11 
of the Beneficiary's credentials and experience does not provide any support for a claim that the 
proffered position satisfies this prong. 38 
The Petitioner has not provided sufficient probative evidence to establish that a bachelor's degree in a 
specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)(2). 
c. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. Evidence 
provided for consideration under this criterion may include, but is not limited to, an organizational 
chart showing the Petitioner's hierarchy and staffing levels with corresponding academic and 
experience requirements for this position, as well as documentary evidence of past employment 
practices for the position. 
On appeal, the Petitioner argues the Director "ignored relevant information in the record supporting 
this position." However, the record prior to the appeal does not indicate the Petitioner contended it 
had satisfied this criterion or had provided specific evidence to support its claim that it had satisfied 
this criterion. The Director's decision appears to have addressed the information presented at the time. 
On appeal, the Petitioner also states they require a bachelor's degree for the proffered position because 
of the complexity of the work involved, and that prior to the Beneficiary, another individual with a 
bachelor's degree served in the proffered position. As evidence, the Petitioner provides a copy of the 
individual's degree. However, the Petitioner does not provide any evidence of the individual's 
employment or the actual job duties performed by the individual. Without more, this information is 
insufficient to establish that any individual was employed in the same position as the position proffered 
here. 
Even if the Petitioner always required a bachelor's degree in a specific specialty to perform the duties 
of the proffered position, the record would still have to establish that a petitioner's stated degree 
requirement is not a matter of preference for high-caliber candidates but is necessitated instead by 
performance requirements of the position. 39 The Petitioner in this matter has not persuasively 
established that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, 
for the position proffered here. Accordingly, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). Moreover, it has not established the duties of the proposed position require 
a bachelor's degree in a specific specialty, or its equivalent, in order to perform them. 
38 The question of whether a beneficiary is qualified to perform the duties of a given position is an inquiry separate and 
apart from the issue of whether a given position is a specialty occupation. While a given background may quality a 
beneficiary to perform the duties of a given position, it does not necessarily follow that that background is necessa1y to 
perform those duties. 
39 Defensor, 201 F.3d at 387-88. 
12 
d. Second Prong of the Second Criterion and Fourth Criterion 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is satisfied if the Petitioner shows 
that its particular position is so complex or unique that it can be performed only by an individual with 
at least a bachelor's degree in a specific specialty, or its equivalent. 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. 
On appeal, the Petitioner argues the duties are "specialized and complex" and "complex or unique" 
because the position includes "multi-faceted" responsibilities in business operations, property 
management, human resources, marketing, and assessment duties. However, the diverseness of the 
job duties do not demonstrate the position is "specialized and complex" or "complex or unique," but 
rather it is the knowledge needed to perform the duties that is the determining factor. In this case, the 
proposed duties do not provide sufficient and consistent detail to ascertain whether those duties require 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as 
a specialty occupation. For example, the job duties include "[m]aintain relationships with target 
accounts, while sustaining customer segments that are core business"; "[ m ]onitoring and responding 
to results of guests' feedback and taking required corrective actions on guests' complaints on a timely 
basis and attaining guest satisfaction with the resolution of the complaint"; and "[a]ccomplishing and 
submitting all forms of capital improvement of the property and propose various ways to improve 
operations and increase profitability." However, the duty descriptions are so broad and provide so 
little context that they do not illuminate the substantive application of knowledge involved or any 
particular educational requirement associated with such duties. It is not possible to ascertain the nature 
and level of responsibility of the proposed position as generally described. 
Also, we observe some of the job duties included with RFE response were repeated verbatim, or almost 
verbatim, from the general occupational duties provided in the O*NET Summary Report for "General 
and Operations Managers" SOC code 11-1021. 40 The Petitioner includes the following duties: 
• Direct administrative activities directly related to providing customer services; 
• Establish or implement departmental policies, goals, objectives, or procedures in 
conjunction with organization officials; 
• Develop and implement service-marketing strategies, including advertising 
campaigns or sales promotions; 
• Direct and coordinate financial/budget activities to maximize investments andr 
[sic] increase efficiency; and 
• Recommend and oversee the remodeling/renovating of current facilities. 
Providing generic job duties for a proffered position from O*NET or another internet source, is not 
sufficient to establish that the Beneficiary will be performing services in a specialty 
40 O*NET OnLine Summary Report for "11-1021 General and Operations Managers," 
https://www.onetonline.org/link/summary/l l-1021.00 (last visited Mar. 18, 2021). 
13 
occupation. 41 While this type of description may be appropriate when defining the range of duties 
that may be performed within an occupational category, without information describing the 
Beneficiary's specific tasks to be performed within the Petitioner's business, the generic description 
does not establish the substantive nature of the proffered position's duties or demonstrate that 
performing such duties would require the theoretical and practical application of highly specialized 
knowledge and attainment of at least a bachelor's degree in a specific specialty or its equivalent. 
We now return to the position evaluation provided by~------~ In his letter,I~--~ 
~--~l(l) describes the credentials he asserts qualify him to opine upon the nature of the proffered 
position; and (2) states the position is specialized and requires at least a bachelor's degree in business 
administration, business management, hotel management, or related. The professor does not discuss 
the duties of the proffered position in any substantive detail and provides very little analysis in 
explaining how he arrives at his conclusions. Rather, the professor asserts the nature of the job duties 
are "[ 1] technical and [2] highly quantitative and analytical" and that the position "could not be filled 
by an individual in another field or with a degree below a bachelor's level." However, these skills do 
not appear unique to degrees in business administration, business management, hotel management, or 
related, andl I does not discuss why other methods could not lead to a sufficiently similar 
knowledge set, for example, the amount of required training or experience to gain this knowledge or 
alternate degrees that would be acceptable. For example, the professor does not address the Handbook's 
report that an undetermined amount of experience can substitute for education. In addition, as 
previously discussed,~------~ confirms that the proffered position is not a specialty 
occupation by stating that an individual with a bachelor's degree in business administration, with no 
further specialization, can perform the duties of the position. As such, the opinion letter does not 
provide a sufficient basis to establish that the duties described are "specialized" and require a 
bachelor's degree in a specific specialty. 
We also reviewed the Beneficiary's proposal to rebrand the hotel and the Petitioner's response to the 
proposal. Both documents provide some insight on the Beneficiary's job duties; however, neither 
document discusses, and the Petitioner does not explain, why the duties to create or generate the work 
product require at least a bachelor's degree in a specific specialty. While we do not question the value 
of the Beneficiary's insights, without any substantive explanation, the sample work product does not 
convey an understanding of the "complexity or uniqueness" or "s12ecialization and comwexitI' of the 
creation of the work ~roduct. Moreover, the industry letters from I • • Hotels, 
and the I l and I's evaluation letter do not explain why the duties are so "complex or 
unique" or "specialized and complex" that a bachelor's degree in a specific specialty is required. 
Moreover, the Petitioner did not sufficiently discuss or identify any tasks that are so "complex or 
unique" or "specialized and complex" that only a specifically degreed individual could perform them. 
The record lacks sufficiently detailed and unambiguous information to distinguish the proffered 
position as more "complex or unique" or "specialized and complex" from positions that do not require 
at least a bachelor's degree in a specific specialty, or its equivalent. Accordingly, the Petitioner has 
41 Cf Fedin Bros. Co., Ltd. v. Sava. 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990) (Specifics are 
an important indication of the nature of the Beneficiary's duties, otherwise meeting the requirements would simply be a 
matter of providing a job title or reiterating the regulation). 
14 
not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)( 4). 
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. Moreover, the record 
does not establish that the Petitioner satisfied the statutory and regulatory definitions of specialty 
occupation. 
III. BENEFICIARY QUALIFICATIONS 
As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the proffered 
position to conclude that it requires a baccalaureate or higher degree in a specific specialty or its 
equivalent. Absent this determination that a baccalaureate or higher degree in a specific specialty, or 
its equivalent, is required to perform the duties of the proffered position, it also cannot be determined 
whether the Beneficiary possesses that degree, or its equivalent. However for thoroughness and to 
inform the Petitioner of this additional deficiency we conclude that even if the Petitioner had 
established the proffered position is a specialty occupation, the Petitioner has not established that the 
Beneficiary possesses a qualifying degree or its equivalent. 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § l 184(i)(2), states that an individual applying for classification 
as an H-lB nonimmigrant worker must possess: 
(A) foll state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (1 )(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate 
or higher degree required by the specialty occupation from an accredited college 
or university; 
15 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
Therefore, if a license is not required and if the beneficiary does not possess the required U.S. degree 
or its foreign degree equivalent, the petitioner must show that the beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty through 
progressively responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following: 
(]) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results ofrecognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program 
on Noncollegiate Sponsored Instruction (PONS!); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 42 
( 4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as 
a result of such training and experience .... 
42 The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's 
evaluation of education only, not training and/or work experience. 
16 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks .... It must be clearly demonstrated 
that the alien's training and/or work experience included the theoretical and practical 
application of specialized knowledge required by the specialty occupation; that the 
alien's experience was gained while working with peers, supervisors, or subordinates 
who have a degree or its equivalent in the specialty occupation; and that the alien has 
recognition of expertise in the specialty evidenced by at least one type of 
documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation; 43 
(ii) Membership in a recognized foreign or United States association or society in 
the specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation m a foreign 
country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
It is always worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly 
for USCIS application and determination, and that, also by the clear terms of the rule, experience will 
merit a positive determination only to the extent that the record of proceedings establishes all of the 
qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including, but not limited to, a type of 
recognition of expertise in the specialty occupation. 
B. Analysis 
As forementioned, the Petitioner stated that the position requires a minimum of a bachelor's degree or 
its equivalent in business administration, business management, hotel management, or a closely related 
field. Accompanying the petition, the Petitioner submitted an education and experence ofiinion from 
I I, a professor in physical education and sports sciences at University; 
and a copy of the Beneficjary's bachelor of science degree in chemistry froml I University 
43 The term "recognized authority" means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 2 l 4.2(h)( 4)(ii). A recognized 
authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, 
citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions 
were reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. Id. 
17 
and transcripts. With their RFE response, the Petitioner submitted an additional evaluation from 
I I ote=] The Beneficiary's qualifications do not satisfy the regulatory requirements. 
The Beneficiary in this case did not possess: 
• A U.S. baccalaureate or higher degree required by the specialty occupation under 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(]); 
• A foreign degree determined to be similarly equivalent according to 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(2); or 
• An unrestricted State license, registration or certification which authorizes him or her to folly 
practice the specialty occupation found at 8 C.F.R. § 214.2(h)(4)(iii)(C)(3). 
The only remaining possibility exists under the education, specialized training, and/or progressively 
responsible experience provision of 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). Two relevant methods exist for 
equating the Beneficiary's education, specialized training, and/or progressively responsible 
experience to a U.S. baccalaureate or higher degree required by the specialty occupation. The first 
consists of an evaluation from a qualified official with the authority to grant college-level credit for 
training and/or experience, while the second is a U.S. Citizenship and Immigration Services (USCIS) 
determination. 44 The relevant portions of the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D) provide in 
pertinent part: 
Equivalence to completion of a college degree. For purposes of paragraph 
(h)( 4)(iii)(C)( 4) of this section, equivalence to completion of a United States 
baccalaureate or higher degree shall mean achievement of a level of knowledge, 
competence, and practice in the specialty occupation that has been determined to be 
equal to that of an individual who has a baccalaureate or higher degree in the specialty 
and shall be determined by one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an individual's 
training and/or work experience; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation 
as a result of such training and experience .... 
44 See 8 C.F.R. § 214.2(h)(4)(iii)(D)(l) and (5), respectively. The Petitioner does not claim, and the record does not 
demonstrate, the Beneficiary may qualify under the remaining provisions at 8 C.F.R. § 214.2(h)(4)(iii)(D)(2)-(4). 
18 
1. Degree-equivalency 
a. Eligibility under 8 C.F.R. § 214.2(h)(4)(iii)(D)(]) 
The Petitioner initially offered the academic equivalency evaluation froml I which was 
prepared in March 2009 and indicated that the Beneficiary's foreign degree was equivalent to a U.S. 
bachelor's degree in science and management. The issue with this evidence is thatl I does 
not possess the authority to grant credit in the specialty area. According to her equivalency letter,D 
I I states that she has the authority to grant college-level credit based on the candidate's foreign 
educational credentials, training, and/or employment experience in the fields of "[p ]hysical therapy, 
[p ]hysical [ e ]ducation, and related fields." As such.I I does not appear to have the 
authority to grant credit in either management or science. As noted, the regulations specifically 
mandate that the evaluator possess the authority to grant college-level credit for training and/or 
experience in the specialty at an accredited college or university with a program for granting such 
credit. 
Additionally, the Petitioner did not present evidence thatl !university has a program to grant 
college-level credit for training and/or experience in the specialty. The correspondence within the 
record equates to assertions from the parties, but it does not serve as probative evidence supporting 
the Petitioner's claims. Such claims are therefore equivalent to assertions rather than evidence to support 
the declarations, and when made without supporting documentation are oflimited probative value and do 
not carry the weight to satisfy the Petitioner's burden of proof. 45 
In sum, because the evidence of record has not established thatl I is an official who has 
authority to grant college-level credit in the pertinent specialty at an accredited college or university 
for training and/or experience, her opinion regarding the U.S. college-level course equivalency of the 
Beneficiary's training and work experience merits no significant weight under the standard at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(D)(]). 46 
In their RFE !°spore, the Petitioner obtained a January 2017 evaluation froml I an 
evaluator from I I states the Beneficiary's education and work exrrience is equivalent 
to a U.S. bachelor of science with a hospitality management major. However, I does not 
appear to be an official who has the authority to grant college-level credit for training and/or 
experience in the specialty at an accredited college or university. Rather,c=J appears to be foreign 
credential evaluator. The Petitioner has not demonstrated! ts evaluation is eligible for 
consideration under 8 C.F .R. § 214.2(h)( 4 )(iii)(D)(]). 
Additionally, the evaluation letters are not in accord with the regulation at 8 C.F.R. 
§§ 214.2(h)(4)(iii)(C)(4) and (D) for a separate reason. In this instance, when I andc=] 
I !determined that the Beneficiary's foreign degree combined with a certain number of years of 
experience equated to a U.S. baccalaureate degree, each person exceeded their authority as recognized 
45 MatterofSoffici. 22 l&NDec. 158. 165 (Comm'r 1998). 
46 Where an expe11 evaluation is in any way questionable, we may discount it or accord it with less weight. Matter of Sea, 
Inc., 19 I&N Dec. 817,820 (BIA 1988). 
19 
by the regulation . The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(l) allows an evaluation of an 
individual's "education, specialized training, and/or progressively responsible experience " 
describing the official's qualifications and authority "at an accredited college or university." 
This regulation does not authorize the qualified official to assess the foreign national' s education, 
training, and experience in the context of whether such experience satisfies the "three for one" rule 
under the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) . Instead, it is merely describing the official's 
qualifications and authority "at an accredited college or university." In contrast, only USCIS may 
perform the analysis of whether a beneficiary's "three years of specialized training and/or work 
experience" may be substituted "for each year of college-level training the alien lacks" under 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5) . As a result, each professor exceeded their authority on this matter. This 
serves as an additional element diminishing the evidentiary value of these opinion letters. 
b. Eligibility under 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) 
We now tum to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) , which grants the agency the authority to make our 
own determination on the Beneficiary's qualifications. By its very terms, 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCIS to decide. This provision inserts a number of 
elements of proof into the analysis, and it requires substantially more than simply equating any three 
years of work experience in a specific field to attainment of one year's worth of U.S. college credit in 
that field or specialty. 
(1) Equivalency through Training and/or Work Experience 
The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) describes the requirements to equate a foreign 
worker 's specialized training and/or work experience to a qualifying degree through the following: 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the alien lacks .... It must be clearly demonstrated 
that the alien's training and/or work experience included the theoretical and practical 
application of specialized knowledge required by the specialty occupation; that the 
alien's experience was gained while working with peers, supervisors, or subordinates 
who have a degree or its equivalent in the specialty occupation and that the alien has 
recognition of expertise in the specialty .... 
For the Petitioner to satisfy the equivalency provision, it must meet all of the qualifying conditions 
within the first paragraph at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), which contains two primary elements . 
The first is attainment of an equivalency to the required degree through a combination of education, 
specialized training, and/or work experience in areas related to the specialty . That equivalency 
contains multiple mandatory sub-elements : 
1. Three years of specialized training and/or work experience must be demonstrated for each year 
of college-level training the alien lacks; 
2. The alien's training and/or work experience must have included the theoretical and practical 
application of specialized knowledge required by the specialty occupation; and 
20 
3. The alien's experience must have been gained while working with peers, supervisors, or 
subordinates who have a degree or its equivalent in the specialty occupation. 
The inability to meet any portion of these sub-element requirements will result in an adverse 
determination. While the Petition's record arguably meets sub-element 1 , the Petitioner did not offer 
probative material demonstrating his background satisfies sub-elements 2 and 3. As stated earlier, the 
proffered position is not a specialty occupation, which alone would preclude satisfaction of sub­
elements 2 and 3 because there is no "specialty occupation" here. Even if the position was a specialty 
occupation, we would still find that the Petitioner did not elucidate how the Beneficiary's work 
experience demonstrates the application of specialized knowledge required by the position. Although 
I l's letter states that the Beneficiary's experience was gained "at a bachelor's level of 
practical experience" under the "supervision of managers, and together with peers, she did not discuss 
whether any of these individuals have a degree or equivalent in the specific specialty. I t's 
letter does not discuss either of the sub-elements 2 and 3. Finally, neither evaluator discusses w9-ich 
documents they used to evaluate the Beneficiary's experience. Therefore, the Petitioner has not 
provided any evidence demonstrating eligibility under 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). 
We conclude that the totality of the evidence regarding the Beneficiary's foreign education and work 
experience does not satisfy any criterion at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (D). Since evidence 
was not presented that the Beneficiary has at least a U.S. bachelor's degree in any specific specialty, 
or its equivalent, the petition could not be approved even if eligibility for the benefit sought had been 
otherwise established. 
IV. PREVIOUS DECISIONS 
The Petitioner also noted that USCIS approved other petitions that had been previously filed on behalf 
of the Beneficiary. The Director's decision does not indicate whether the prior approvals of the other 
nonimmigrant petitions were reviewed. If the previous nonimmigrant petitions were approved based 
on the same unsupported and contradictory assertions that are contained in the current record, the 
approvals were granted in error. As outlined above, the proffered position is not a specialty 
occupation, and current record does not establish that the Beneficiary is qualified to perform the duties 
of a specialty occupation. There is no basis upon which to approve this petition. We are not required 
to approve petitions where eligibility has not been demonstrated, merely because of prior approvals 
that may have been erroneous. 47 It would be "absurd to suggest that [USCIS] or any agency must treat 
acknowledged errors as binding precedent." 48 
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. 49 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. 5° Furthermore, our authority over the 
service centers is comparable to the relationship between a court of appeals and a district court. Even 
47 See Matter of Church Scientology Int'/, 19 T&N Dec. 593, 597 (Comm'r 1988). 
48 Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
49 Temporary Alien Workers Seeking Classification 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). 
so See Tex. A&M Univ. v. Upchurch, 99 F. App'x 556 (5th Cir. 2004). 
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if a service center director had approved the nonimmigrant petitions on behalf of a beneficiary, we 
would not be bound to follow the contradictory decision of a service center. 51 
V. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, the 
appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
51 See La. Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
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