dismissed H-1B Case: Moving And Storage

MATTER OF 0-M-&S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 30, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a moving and storage company, seeks to temporarily employ the Beneficiary as an 
operations manager 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 of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 0-M-&S-, Inc. 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted 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. 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. THE PROFFERED POSITION 
In response to the Director's request for evidence (RFE), the Petitioner provided the following job 
duties for the proffered position: 
• Direct our operations including ensuring that all departments of our moving 
company are operating efficiently; determine and implement our company 
policies with regard to human resources, marketing, sales, vendors, with a view 
towards ensuring that we are function [sic] efficiently and profitably; oversee the 
managers of our Logistics, Storage, Customer Support, Human Resources and 
Acquisitions. 20% of time 
• Continuously review our $20 million budget and ensure that the · Operations 
department complies with the parameters for their expenses; develop and 
implement purchasing policies for our trucks, equipment, uniforms, office 
equipment and supplies; analyze our revenue and expenses and set weekly, 
monthly and annual revenue goals; determine and implement cost-cutting 
measures; review major expenditures such as equipment and facility purchases 
and rentals and analyze these purchases; organize how new storage facilities will 
be designed and how they will function; review profit/loss statements to ensure 
that revenue targets are being met; modify expenditure policies to meet revenue 
targets; solicit and review bids from vendors for packing supplies, boxes, carts, 
uniforms, truck parts, truck repairs, gas and oil and other moving supplies, and 
select the most competitive bid from the most reliable sources. 20% of time 
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Matter of 0-M-&S-, Inc. 
• Periodically review our operational methods and procedures across all spheres to 
i{ientify and eliminate or minimize inefficiencies, and create improved policies 
and procedures; recommend ways to improve the functioning of the department 
and oversee the implementation of those directives; compare the responsibilities 
of those working in each department to determine and eliminate any overlap; 
review the use of our resources to minimize or eliminate waste and increase 
efficient use of all resources. 10% of time 
• Review staffing to ensure staff members are assigned responsibilities in line with 
their education/experience, as well as the changing needs of our company, and 
re-assign staff where needed; identify gaps in our sales teams, and recommend 
ways to improve our service methodologies to increase our customer base, ensure 
clients' needs are met, and achieve excellent word-of-mouth for our company; 
analyze proposals from contractors and negotiates agreements for long-distance 
moving projects and large-scale local commercial projects. 15% of time 
• Analyze market surveys regarding other moving companies, both in 
and nationally and review our competitors' services, prices, methods for 
responding to claims and other factors that affect the cusses of a moving 
company; compare our moving services and pricing to competitors', and 
recommend shifts to our offerings to remain competitive, such as recommending 
additional services to offer to clients in the realms of storage, premium packing, 
and expanded our geographic reach; review demographic and real estate pricing 
data and decide which new locations [the Petitioner] should set up new storage 
facilities in. 10% of time 
• Negotiate strategic commercial agreements with corporate clients. After the Sales 
departments identify large-scale commercial and corporate clients for our moving 
and storage services, enter into negotiate complex contracts to provide our 
moving and storage services to these large corporate clients. 1 0% of time 
• Engage outside marketing professionals, as necessary, to enlarge our market share 
of the moving and storage industry through using more-effective web site, social 
media, TB, radio and print adds; regularly review marketing reports and 
demographic studies from our marketers to ensure that the ads are effective. 10% 
of time 
• Responsible for ensuring that all 50+ vehicles are in compliance with vehicle laws 
and regulations and that drivers meet regulatory and licensing requirements; use 
amortization, statistical and pricing data and actual vehicle performance to 
determine when trucks should be replaced with new ones. 5% of time 
The Petitioner initially stated that the minimum entry requirement for the proffered position is a 
bachelor's degree in business administration, management, or a closely related field, or its 
equivalent. Then, in response to the RFE, the Petitioner stated that "[a]s the duties of the [proffered] 
position ... have been greatly expanded and made more sophisticated in direct response to our 
Business Consultant . . . the position now requires services of a professional with at least a 
Bachelor's degree in Business Administration or its equivalent." 
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Matter ofO-M-&S-, Inc. 
III. ANALYSIS 
For the reasons set out below, we have determined that the proffered position does not qualify as a 
specialty occupation.1 Specifically, the record does not establish that the job duties require an 
educational background, or its e9uivalent, commensurate with a specialty occupation.2 
As a preliminary matter, the Petitioner's claim that a bachelor's degree in business administration is 
a sufficient minimum requirement for entry into the proffered position is inadequate to establish that 
the proposed position qualifies as a specialty occupation. 
A petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly and closely 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. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 
558, 560 (Comm'r 1988). 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 discussed above, we interpret the degree requirement at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) to require a degree in a specific specialty that is directly related to the proposed 
,, position. Although a general-purpose bachelor's degree, such as a degree in business administration, 
may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will 
not justify a finding that a particular position qualifies for classification as a specialty occupation. 
Royal Siam, 484 F.3d at 147? 
Again, the Petitioner in this matter claims that the duties of the proffered position can be performed 
by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business 
administration. Without more, this assertion alone indicates that the proffered position is not in fact 
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-1 B 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. 
3 Specifically, the judge 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-1 B 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 of Michael Hertz Assocs., 19 I & &N Dec. 558,560 ([Comm'r] 1988) 
(providing frequently cited analysis in connection with a conceptually similar provision). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
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Matter of 0-M-&S-, Inc. 
a specialty occupation. The Director's decision must therefore be affirmed and the appeal dismissed 
on this basis alone. 
Nevertheless, we will continue our analysis of whether the proffered position qualifies as a specialty 
occupation for the purpose of performing a comprehensive analysis. We will next discuss the record 
of proceedings in relation to the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize 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)5 submitted in support of the H-1 B petition, the Petitioner 
designated the proffered position under the occupational category "General and Operations 
Managers" corresponding to the Standard Occupational Classification code 11-1021.6 The 
Handbook discusses general and operations managers in its "Top Executives" chapter. 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into the occupation. The Handbook 
states, in pertinent part, that "workers without a college degree may work their way up to higher 
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 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. 
5 The Petitioner is required to submit a certified LCA to us to demonstrate that it will pay an H-18 worker 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 performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 l&N Dec. 542, 545-46 (AAO 2015). 
6 The Petitioner classified the proffered position at a Level I wage (tl)e 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: (1) 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:/ !tlcdatacenter.com/download!NPWHC _Guidance_ Revised _11_ 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. !d. 
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Matter of 0-M-&S-, Inc. 
levels within the company to become ... general managers." Bureau of Labor Statistics, U.S. Dep't 
of Labor, Occupational Outlook Handbook, Top Executives (2016-17 ed.). It also reports that 
"[ m ]ost general and operations managers hired from outside an organization need lower level 
supervisory or management experience in a related field." !d. Therefore, the Handbook does not 
indicate that a baccalaureate or higher in a specific specialty, or its equivalent is necessary for entry 
into this occupation. 
Here, the Petitioner has not provided documentation from a probative source to substantiate its 
assertion regarding the 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)(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. 
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 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) (considering 
these "factors" to inform the commonality of a degree requirement)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, authoritative source) 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. In the instant matter, the Petitioner stated in its letter 
of support that a bachelor's degree in business administration, or its equivalent, is required. 
However, 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." Nor is there any other evidence relevant to this prong. Thus, based upon a complete 
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Matter of 0-M-&S-, Inc. 
review of the record of proceedings, we find that the Petitioner has not satisfied the first alternative 
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In this matter, the evidence of record does not distinguish the proffered position as unique from or 
more complex than other operations manager positions that can be performed by persons without at 
least a bachelor's degree in a specific specialty, or its equivalent. Specifically, it is unclear how the 
proffered position, as described, necessitates the theoretical and practical application of a body of 
highly specialized knowledge such that a person who has attained a bachelor's or higher degree in a 
specific specialty, or its equivalent, is required to perform them. Rather, we find that, as reflected in 
this decision's earlier quotation ofthe duty description from the record of proceedings, the evidence 
of record does not distinguish the proffered position from other positions falling within the "General 
and Operations Managers" occupational category. 
To begin with, while the Petitioner claims that the position focuses on directing the company's 
operations and managing its $20 million budget, the Petitioner does not demonstrate how the 
operations manager's duties require the theoretical and practical application of a body of highly 
specialized knowledge such that a bachelor's or higher degree m a specific specialty, or its 
equivalent, is required to perform them. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
As previously discussed, the LCA indicates that, relative to other positions located within the 
"General and Operations Managers" occupational category, the Beneficiary would perform only 
routine tasks that require limited, if any, exercise of judgment; close supervision of work, monitored 
and reviewed for accuracy; and the receipt of specific instructions on required tasks and expected 
results. Without further evidence, the evidence does not demonstrate that the proffered position is so 
complex or unique as such a position falling under this occupational category would likely be 
classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) position.7 
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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 
Level IV 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)( I) of the Act. 
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Matter of 0-M-&S-, Inc. 
For example, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems." 
Further, on appeal, the Petitioner contests the Director's finding that the duties of the proffered 
position are comparable to those of the occupational category "Administrative Services Managers" 
corresponding to the Standard Occupational Classification code 11-3011. The Petitioner contends 
that the proffered position is professional in nature and that the Beneficiary "will have responsibility 
for all departments of a $20 million, 200-employee company." As such, the Petitioner argues that 
the duties of the proffered position are comparable to those found under "Top Executives," the 
category under which "General and Operations Managers" is found. While the Petitioner asserts that 
the duties of the proffered position are highly complex, and performs a comparison of the listed 
duties with those found in the Handbook for "Top Executives," the Petitioner has not demonstrated 
how the operations manager's duties described 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. Again, the Petitioner claims that the duties of the 
proffered position can be performed by an individual with only a general-purpose bachelor's degree, 
i.e., a bachelor's degree in business administration. However, requiring such a degree, without 
more, will not justify a finding that a particular position qualifies for classification as a specialty 
occupation. 
Moreover, the Petitioner claims that the Beneficiary is well-qualified for the position, and references 
his qualifications. However, the test to establish a position as a specialty occupation is not the 
education or experience of a proposed beneficiary, but whether the position itself requires at least a 
bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not sufficiently 
develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not 
identifY any tasks that are so complex or unique that only a specifically degreed individual could 
perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(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. 
In response to the RFE, the Petitioner stated that it hired an independent business consultant to 
review the company's operations, who provided numerous recommendations, such as reviewing all 
staff to ensure that each department was managed by qualified individuals and making changes to its 
core structure. As such, the Petitioner stated that it hired a controller who holds a bachelor's degree 
in business administration, and a sales manager and an information technology manager, who both 
hold master of business administration degrees. However, the Petitioner did not submit any 
evidence of its employees' educational degrees, their actual employment with the Petitioner, or 
evidence pertaining to their duties. Further, the Petitioner did not state that it previously employed 
an operations manager, such that we can determine the Petitioner's past hiring practices for the 
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Matter of 0-M-&S-, Inc. 
proffered position and conclude that the Petitioner normally requires a bachelor's degree m a 
specific specialty, or its equival~nt for this position. 
Given that the Petitioner has not submitted any evidence to corroborate its statements, we cannot 
conclude that the Petitioner normally requires a bachelor's degree in a specific specialty, or its 
equivalent for this position. Therefore, the Petitioner has not satisfied the criterion at 8 C.F .R. 
§ 214.2(h)(4)(iii)(A)(3). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner asserts that the job duties of the proffered position are specialized and complex. 'We refer 
to our earlier comments and findings with regard to the implication of the Petitioner's designation of the 
proffered position in the LCA as a Level I wage, and hence one not likely distinguishable by relatively 
specialized and complex duties. We have also reviewed the Petitioner's description of duties for the 
proffered position, including the expanded duties submitted in response to the RFE. The Petitioner has 
not sufficiently explained how these duties require the theoretical and practical application of a body of 
highly specialized knowledge, and the 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 
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). 
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. 
ORDER: The appeal is dismissed. 
Cite as Matter ofO-M-&S-, Inc., ID# 441752 (AAO June 30, 2017) 
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