dismissed H-1B Case: Restaurant Management

MATTER OF 1-B-G-F-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 9, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a four-employee restaurant franchise management company, seeks to extend the 
Beneficiary's temporary employment as a business development analyst under the H-lB 
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)(l5)(H)(i)(b). The H-1B program allows a U.S. 
employer to temporarily employ a qualified foreign worker in a position that requires both (a) the 
theoretical and practical application of a body of highly specialized knowledge and (b) the 
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum 
prerequisite for entry into the position. 
The Director, Vermont Service Center, denied the petition. The Director concluded the Petitioner 
did not establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. 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 1-B-G-F-, LLC 
(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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree 
requirement in a specific specialty" as "one that relates directly to the duties and responsibilities of a 
particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "business development 
analyst." In response to the Director's request for evidence (RFE), the Petitioner provided the 
following job duties for the position: 
Financial Development & Internal Auditing (25%): 
In this area of the job, [the Beneficiary] utilizes his extensive coursework and 
experience with hospitality management, accounting, corporate research, and 
financial assessment within the hospitality industry to make successful economic 
forecasts for our company. The duties described below cannot be performed by an 
employee who did not have proper academic study in the relevant areas. [The 
Beneficiary] will do a cost analysis of the business to determine the most profitable 
avenues for the corporation. After determining the budgetary needs of the business 
and preparing the balance sheet, and profit/loss statements, [the Beneficiary] uses his 
hotel and restaurant management background to develop a management control 
system to aid in financial planning. He studies the past sales data to identify patterns 
based upon seasonality and economic environment. [The Beneficiary] is tasked with 
developing predictive models for level of inventory based upon the analysis of sales 
data. He has developed models to predict sales and ensure inventory levels are in line 
with the expansion of business. He is responsible for identifying the means to ensure 
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Matter of 1-B-G-F-, LLC 
maximum liquidity of assets while minimizing cost and maximizing sales and profits. 
Lastly, he along with [another business development analyst employed by the 
Petitioner], develops monthly, quarterly and annual reports on all of his projects 
based upon his internal auditing and recommends strategic direction for the entire 
business. 
Marketing/Public Relations {20%): 
In marketing and public relations, [the Beneficiary] is responsible for marketing the 
company's services to the relevant communities. He will be designing a marketing 
plan geared towards attracting customers to the business and supply contractors. The 
restaurant industry has a highly competitive landscape and it is crucial to employ a 
Business Development Analyst that can leverage the marketing and retail 
merchandising aspects of the company. His responsibilities will include coordination 
of external and internal, local and international marketing research, analyzing and 
implementing the use of various sales tools, and coordinating the start-up of new 
expansion projects. In the Occupational Outlook Handbook, the requirement of a 
Bachelor's Degree, at a minimum, for marketing and PR management positions in 
noted. 
Contracts/Expansion Project Development (40%): 
One of [the Beneficiary's] most important duties within [the Petitioner] is developing 
an in-house business model for the company which would allow it to get involved in 
the establishing of additional franchising locations ... This type of project can only be 
undertaken by someone experience and qualified for entrepreneurial expansion. The 
Beneficiary is one such individual. [The Beneficiary] has a business background as 
well as many years of relevant work experience. 
[The Beneficiary] has responsibilities of negotiating services contracts as needed and 
working with other companies to ensure fulfillment of contracts by cooperating with 
the hospitality executives business analysts, and managers in those businesses. He 
essentially coordinates his efforts with the business developers employed by other 
companies in order to conduct project development and pre-construction meetings. 
Prequalification of assessment of vendors, manufacturers, and subcontractors is a 
crucial component of business expansion. Additionally, is responsible for 
comprehensive project development schedules, opportunity planning reports, contract 
price justification, and preparing detailed project implementation guidelines. In this 
area of the job, [the Beneficiary] negotiates and close[s] contracts that meet the 
business expansion objectives of [the Petitioner]. 
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Matter of 1-B-G-F-, LLC 
Supply Chain Management (15%): 
The job duties for a Business Development Analyst encompass several different areas 
of business development and management science, including those areas that rely on 
strong supply-chain management [The Beneficiary] establishes procedures for [the 
Petitioner] including distribution planning, and inbound/outbound logistics. He will 
be responsible for streamlining the entire supply chain process and thereby reducing 
costs for [the Petitioner] on a continuous basis. These changes will be reflected in his 
logistics reports and will form the foundation on which the company will seek to 
enter new target markets or expansion in areas where the company has already 
achieved profitable growth. [The Beneficiary] uses his business background to 
manage large volumes of business data common to medium size businesses within the 
industry and formulate a plan of action for [the Petitioner]. 
In its RFE response letter, the Petitioner stated that two individuals previously employed by the 
company in the proffered position held bachelor's degrees in commerce and hotel management, but 
it did not otherwise clearly articulate what its minimum educational requirement is for the business 
development analyst position. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 1 
As a preliminary matter, we find that the evidence of the Petitioner's operations and the 
Beneficiary's stated duties undermines the Petitioner's assertion that the Beneficiary will be working 
primarily as a business development analyst The Petitioner indicated on the Form 1-129 that it 
employs four individuals, including another business development analyst and two executive level 
employees. A review of the Beneficiary's duties. indicates that the Beneficiary would perform 
several duties which require that he dictate to various operational employees, including setting 
management control systems, managing inventory levels, overseeing finances, negotiating contracts, 
and developing schedules. However, it is not clear which employees actually perform the 
operational tasks required to support the Beneficiary's tasks. For example, the record does not 
document the employees who will be impacted by his management control systems, and which 
employees will sell and handle inventory, perform the daily bookkeeping, and provide goods and 
services pursuant to referenced contracts. In fact, the Petitioner's assertions are particularly 
questionable given that its business development analysts consist of half of the company's work 
1 The Petitioner submitted documentation to support the H-I 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. 
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Matter of 1-B-G-F-, LLC 
force as of the filing date of the petition. These discrepancies leave significant question as to 
whether the Beneficiary will principally act as a business development analyst performing the duties 
asserted in his duty description. 
In its appeal, the Petitioner contends that it has "grown during the last year," that it now has I 1 
employees, and therefore it requires the services of another business development analyst. Further, 
the Petitioner submits IRS Forms 941 Employer's Quarterly Wage Reports for each quarter of2015 
reflecting that it had 11 employees in the third and fourth quarters of 2015 and no less than eight 
employees during that year. However, on the petition filed on October 9, 2015, the Petitioner stated 
that it had only four employees. The Petitioner does not explain this apparent discrepancy. In 
addition, the Petitioner's assertion that it has grown during the last year is questionable as the 
submitted IRS Forms 941 are from 2015, not from a year preceding the filing of the petition. 
Further, the provided IRS Forms 941 are not signed and there is no other evidence to substantiate 
that they were submitted to the IRS. The Petitioner also does not identify these additional 
employees and their duties to corroborate any claims that they support the Beneficiary in his 
purported role as a business development analyst. Therefore, in sum, the Petitioner has not 
explained apparent discrepancies on the record, nor substantiated that the company has more than 
the four employees reflected in the Form I-129 and the evidence provided prior to appeal. The 
Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For these reasons, we find that the record is devoid of sufficient information regarding the specific 
duties to be performed by the Beneficiary. The Petitioner has not established the substantive nature 
of the work to be performed by the Beneficiary, which therefore precludes a finding 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 (I) the normal minimum educational requirement for 
entry into the particular 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. Accordingly, as the Petitioner has not established that it has satisfied any of the 
criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for 
classification as a specialty occupation. For this reason, the appeal will be dismissed and the petition 
denied. 
Finally, we will address an additiona:l, independent ground that precludes approval of this petition. 
The petition also cannot be approved because the record of proceedings lacks probative evidence 
demonstrating that the Petitioner will offer a wage equal to or greater than that required by law. 
Section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), states that the Petitioner must offer 
wages that are at least "the actual wage level paid by the employer to all other individuals with 
similar experience and qualifications for the specific employment in question" or "the prevailing 
wage level for the occupational classification in the area of employment, whichever is greater." 
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Matter of 1-B-G-F-, LLC 
Here, the Petitioner specified on the LCA that the occupational classification for the proffered 
position falls under "Business Operations Specialists, All Others" and listed the SOC (O*NET/OES) 
Code as 13-1199. The LCA lists the prevailing wage as $40,997 for the Level I position it is 
proffering to the Beneficiary, and lists the "[Office of Foreign Labor Certification (OFLC)] Online 
Data Center" as the source of the prevailing wage. The Petitioner stated on the LCA that it would 
pay the Beneficiary $42,000 per year.2 By completing and submitting the LCA, and by signing the 
LCA, the Petitioner attested that the information contained in the LCA was true and accurate. 
A review of the OFLC's Online Wage Library reveals that the prevailing wage for the same time 
period, occupational code, and location is actually $42,245 per year, not $40,997. Therefore, as the 
Petitioner has not offered a wage that is equal to or greater than the prevailing wage, the petition 
cannot be approved for this additional reason. 3 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-B-G-F-, LLC, ID# 150965 (AAO Dec. 9, 2016) 
2 The Form I- I 29 also lists a wage of $42,000 per year. 
3 We also note that the Petitioner claims in response to the Director's RFE that the "most similar position [to the 
proffered position] in the [Department of Labor's Occupational Outlook Handbook] is that of Management Analyst ... 
. " We note that the prevailing wage for a Level I management analyst for the same time period, occupational code, and 
location is $49,400 per year which is also higher than the wage offered to the Beneficiary. 
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