dismissed H-1B Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 8429212 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 27, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as an "operations analyst" 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 California Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de novo. 2 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
1 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
(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. 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. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record does 
not establish that the job duties require an educational background, or its equivalent, commensurate with 
a specialty occupation. 
A. Minimum Requirements 
The Petitioner initially claimed that its proffered position "qualifies as a specialty occupation as a 
bachelor's degree, or its foreign equivalent, in Business Administration, Management, Operations, or 
a related field is required." In response to the Director's request for evidence (RFE), 3 the Petitioner 
stated that "it look[s] for the students [who] majored in business or data analysis." The Petitioner's 
acknowledgment that the proposed position may be performed with a bachelor's degree in business or 
business administration, without further specialization, is inadequate to establish that the proposed 
position qualifies as a specialty occupation. 4 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, 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). Here, the Petitioner accepts a bachelor's degree in 
the general field of business as sufficient to perform the duties of the proposed position. It does not 
state that the business degree must include one or more specific concentrations. 5 That is, the Petitioner 
3 The Director issued two RFEs in this matter. The second RFE issued on February 21, 2019, focused on the issue of 
specialty occupation and is the RFE and response referred to here. 
4 The Petitioner's academic requirements to perform the duties are in the disjunctive. Thus, according to the Petitioner a 
business administration degree will suffice to the perform the duties of the position. 
5 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty occupation. 
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who has the burden of proof in this matter looks for students to fill the proffered position who majored 
in the general field of business, not in business with a concentration in marketing, or in business with 
a concentration in analytics, or a business degree with any other particular concentration. We have 
consistently stated that a position with duties that may be performed with a general business degree, 
without more, is insufficient to establish that a position is a specialty occupation. 
B. Nature of the Position 
The Petitioner, a 13-employee restaurant, desires to employ the Beneficiary beginning October 1, 2018 
to September 24, 2021 in H-lB status as an operations analyst. The Petitioner designated the proffered 
position on the labor condition application (LCA) 6 as an "Operations Research Analyst" occupation 
corresponding to the Standard Occupational Classification (SOC) 15-2031 at a Level II wage. The 
Petitioner initially provided a broad description of the position indicating generally that the 
Beneficiary will "review operations, assess results, recommend improvements, identify profit/loss 
indications, and assist management with a variety of analysis and reporting to increase efficiency, 
reduce costs, and improve internal operations." 7 The Petitioner added that the Beneficiary will lead 
specific projects to improve operations, inboard customers, and drive profitability and improve 
operational systems, processes and policies to upscale the business and support growth, as well as 
participate in the preparation and reporting of monthly/quarterly/yearly operations budgets, track and 
follow up with leadership to correct errors, and identify trends and quality gaps from the analysis of 
monitoring data to improve the customers' experience. 
The Petitioner, however, did not provide the context for the actual day-to-day duties the Beneficiary 
will perform as those duties relate to its particular business methods and restaurant procedures or 
sufficient evidence of its business operations to demonstrate the type of mathematical models and 
optimizing methods that the Beneficiary would provide. The duties appear to be routine managerial 
functions for a small restaurant and not the in-depth functions related to splitting systems into 
components, applying numerical values, and examining mathematical relationships. We also 
reviewed the Petitioner's organizational chart, copies of menus, and information from its website. 
This information, however, does not convey an understanding of the Petitioner's actual business 
structure or operations and how those operations incorporate the formulation of mathematical or 
simulation models and the application of judgment and statistical tests to upscale the business and 
support its growth. The lack of detailed information regarding the position raises questions regarding 
the nature of the position and level of responsibility of this position within the company. In other 
For example, an entry requirement of a bachelor's or higher degree in business administration with a concentration in a 
specific field, or a bachelor's or higher degree in business administration combined with relevant education, training, 
and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must 
be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a specific specialty that is 
directly related to the proffered position. See Royal Siam Corp., 484 F.3d at 147. 
6 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B 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. Section 212(n)(l) 
ofthe Act; 20 C.F.R. § 655.73l(a). 
7 The Petitioner noted this will involve: applying financial and mathematical modeling, forecasting, rep01iing, and 
analysis; developing operational and inventory forecasting and variance KPis, analytics and plans, and producing regular 
analyses and rep011s on business operations; identifying ways to improve inventory processes, accuracy, reduce variances, 
drive efforts to manage/improve costs using/refining time and productivity standards. 
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words, the Petitioner does not provide adequate information to delineate how the job description 
translates to specific duties and responsibilities and how such work will be conducted within the 
Petitioner's business operations. 
The Petitioner created farther ambiguity in the record regarding the position in its response to the 
Director's RFE. We reviewed the Petitioner's 2019 business plan and note that the Beneficiary is 
tasked with relying on operational checklists to verify that work shifts have been properly prepared 
and to ensure that operational standards are followed. This does not appear to be the work of an 
"Operations Research Analyst," but rather the work of a first-line manager. In the Petitioner's 
response letter, the Petitioner stated that the Beneficiary will spend: 50 percent of her time 
"[i]dentifying areas of improvement I collecting data/ analyzing data/ determining necessary focus;" 
20 percent of her time "[c]reating marketing tools to maximize capacity;" 15 percent of her time 
"[ m ]onitoring and controlling labor costs and overhead costs to achieve planned profit margins;" and, 
15 percent of her time "[h]iring, training and evaluating staff to meet the requirements of the 
company." Although identifying areas of improvement and collecting and analyzing data may include 
some research and analysis, the record lacks evidence of the scope, detail, and complexity of these 
tasks within the Petitioner's business operations. The record does not include sufficient evidence to 
demonstrate the proposed position is an "Operations Research Analysts" occupation rather than some 
other occupation. 8 
Moreover, creating marketing tools, monitoring and controlling costs, and hiring, trammg, and 
evaluating staff appear to correspond more closely to "Marketing Managers" occupations (SOC code 
11-2021 ), or "Operations Managers" occupations (SOC code 11-1021 ). These tasks which take up at 
least 50 percent of the Beneficiary's time and appear to fall within the parameters of other occupations 
that require a higher wage. 9 Notably, the relevant prevailing wage for Level II "Marketing Managers" 
positions ($46.22 per hour) and "Operations Managers" positions ($43.13 per hour) are significantly 
higher than the relevant prevailing wage for a Level II "Operations Research Analysts" position 
($33.65 per hour). Such a wage disparity highlights the difference between the "Operations Research 
Analysts" and "Marketing Managers" or "Operations Managers" occupational categories generally, 
and more specific to this case, the significance of the Petitioner's choice of the lower paying 
occupational category. The lack of a detailed description of the proposed duties demonstrating the 
actual nature of the position precludes a conclusion that the position is a specialty occupation. 
To address the Petitioner's assertions on appeal, we observe that even if the proffered position included 
some duties of an "Operations Research Analysts" occupation, which has not been established, such 
an occupation is not categorically a specialty occupation. To inform this inquiry, we consider the 
information contained in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook 
8 For example, the Petitioner does not sufficiently distinguish these general duties with other occupations, such as a 
"Business Intelligence Analysts" occupation, SOC code 15-1199.08. A "Business Intelligence Analyst" occupation 
requires a higher wage than an "Operations Research Analyst" in the area and time period of the work certified on the 
LCA. See Foreign Labor Certification Data ~ter Online Wage Library at 
https://flcdatacenter.com/OesQuickResults.aspx?code= 15-1 l 99&area=l__J&year= l 8&source= 1. 
9 See Foreign Labor Certification Data Center Online Wage Library 
https:/ /flcdatacenter.com/OesQuickResults.aspx?code= 11-2021 &areaoyear= 18&source= 1 
https:/ /flcdatacenter.com/OesQuickResults.aspx?code= 11-1021 &area year= 18&source= 1, respectively. 
4 
at 
and 
(Handbook) regarding the duties and educational requirements of the wide variety of occupations it 
addresses. 10 The subchapter of the Handbook titled "How to Become an Operations Research 
Analyst" states, in relevant part, that while "some schools offer bachelor's and advanced degree 
programs in operations research, some analysts have degrees in other technical or quantitative fields, 
such as engineering, computer science, analytics, or mathematics." 11 The Handbook indicates forth er 
that courses in various fields such as engineering, mathematics, computer science, economics, and 
political science are useful because "operations research is a multidisciplinary field with a wide variety 
of applications." 12 Because the Handbook recognizes this occupation as multidisciplinary, and does 
not identify a specific discipline to perform the duties of the occupation, the Handbook does not 
support a conclusion that these positions comprise an occupational group for which normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner, who has the burden of proof in these matters must show that the particular position 
offered to the Beneficiary is among the positions for which a bachelor's degree in a specific discipline, 
or its equivalent, is required. 
We also observe that the Petitioner appears to rely on the Beneficiary's qualifications to establish that 
the position is a specialty occupation. However, 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 a 
specialized course of study 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.13 Section 214(i)(l) of 
the Act; 8 C.F.R. § 214.2(h)(4)(ii). Again, the Petitioner does not explain or elaborate on the nature of 
the duties of its particular position such that we may conclude that the duties require the substantive 
application of a body of specialized knowledge associated with a bachelor's degree in a specific 
discipline, or its equivalent. 14 
Upon review of the totality of the record, the Petitioner has not established the substantive nature of 
the work to be performed by the Beneficiary, which therefore precludes a conclusion that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of 
that work that determines ( 1) the normal minimum educational requirement for entry into the particular 
10 We do not maintain that the Handbook is the exclusive source ofrelevant 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. Nevertheless, the burden ofproofremains on the Petitioner to submit sufficient evidence to 
support a finding that its particular position would nonnally have a minimum, specialty degree requirement, or its 
equivalent, for entry. 
11 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Operations Research Analysts, 
https://www.bls.gov/ooh/math/operations-research-analysts.htm (last visited Mar. 27, 2020). 
12 Id. 
13 Similarly, the record must 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. See Defensor, 201 F .3d 
at 387-88. 
14 Additionally, without a clear understanding of the proposed duties in relation to the Petitioner's business operations, we 
also cannot conclude that the certified LCA supports the petition. 
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position, which is the focus of criterion 1; (2) industry positions which are parallel to the proffered 
position and thus appropriate for review for a common degree requirement, under the first alternate 
prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the 
focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and ( 5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. 15 
Upon review of the totality of the evidence submitted, the Petitioner has not established that more 
likely than not, the proffered position is a specialty occupation under any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Moreover, the record does not establish that the Petitioner satisfied the statutory 
and regulatory definitions of specialty occupation. 
ORDER: The appeal is dismissed. 
15 Because the Petitioner has not established the substantive nature of the work to be performed by the Beneficiary, it has 
not demonstrated that the proffered position meets the statutory definition of a specialty occupation. See Section 2 l 4(i)(l) 
of the Act. Therefore, further discussion of the issues raised on appeal regarding whether the Petitioner satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) is unnecessary. 
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