dismissed H-1B Case: Restaurant Management

(b)(6)
DATE: MAY 0 1 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: VERMONT SERVICE CENTER FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § llOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIO NER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
www. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The service center director denied the nonimmig rant visa petition, and the matter is 
now before the Administrative Appeals Off ice (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
I. INTRODUCTION 
On the Form I-129 visa petition, the petitioner describes itself as a seven-employee 1 Italian market, 
bakery and restaurant 2 established in In order to employ the beneficiary in what it designates 
as a full-time operations manager position at a salary of $68,751.54 per year3 the petitioner seeks to 
classify him as a nonimm igrant worker in a specialty occupation pursuant to section 
101(a)(15 )(H)(i)(b) of the Immigration and National ity Act (the Act), 8 U.S.C. 
§ 1101(a)( 15)(H)( i)(b ). 
The director denied the petitiOn, concluding that the evidence of record does not demonstrate: 
(1) that the proffered position qualifies for classif ication as a specialty occupation; and (2) that the 
beneficiary is qualified to perform the duties of a special ty occupation. 
The record of proceeding before us con tains the following: (1) the Form 1-129 and supporting 
documen tation ; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; (4) the director's lett er denying the petition; and (5) the Form I-290B and supporting 
documenta tion. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
II. SP ECIALTY OCCUPATION 
We will first address the director's finding that the proffered position is not a specialty occupation. 
Based upon a compl ete review of the record of proceeding, we find that the evidence of record does 
not establish that the position as described constitutes a special ty occupation. 
1 On the Form I-129, the petitioner indicates that it has between 10 and 16 employees during the month of 
July. 
2 The petitioner provided a North American Industry Classification System (NAICS) Code of 722511, 
"Full-Service Restaurants." U.S. Dep't of Commerce, U.S. Census Bureau, North American Industry 
Classification System, 2012 NAICS Definition, "722511 Full-Service Restaurants," 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited Apr. 28, 2015). 
3 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "General and Operations Managers" occupational classification, 
SOC (O*NET/OES) Code 11-1021, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
A. Law 
To meet its burden of proof in this regard, the petitioner must establish that the employment it is 
offering to the beneficiary meets the following statutory and regulatory requirements. 
Section 214 (i)(l) of the Immigration and Nationalit y Act (the Act), 8 U.S.C. § 11 8 4(i)(l) defines the 
term "specialty occupation " as one 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 term "specialt y occupati on " is further defined at 8 C.F.R. § 21 4.2(h)(4)(ii) as: 
An occupation which requires [(1)] theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited 
to, architecture, engineering, mathematics, physical sciences, social sciences, 
medicine and health, educati on, business specialties, accounting, law, theolog y, and 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialt y, or its equivalent, as a minimum for entry into the occupation in the 
United St ates. 
Pursuant to 8 C.F.R. § 21 4 .2(h)(4)(iii)(A), to qualify as a specialty occupatio n, the position must 
also meet one of the following criteria: 
(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 alternati ve, 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. 
As a threshold issue, it is noted that 8 C.F.R. § 21 4.2(h)(4)(iii)(A) must logically be read together 
with section 21 4(i)(l) of the Act and 8 C.F.R. § 21 4. 2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 28 1, 29 1 (19 88) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 56 1 (1 989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.F.R. 
§ 214 .2(h)(4 )(ii i)(A) should logically be read as being necessary but not necessarily suff icient to 
meet the statutory and regulatory definition of specialty occupat ion. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the defin ition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 21 4 .2(h )(4) (ii i)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
20 1 F.3d 384, 387 (5th Cir . 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4) (iii )(A) must 
therefore be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory defin itions of specialty occupation . 
As such and consonant with section 21 4(i )(1) of the Act and the regulation at 8 C.F.R. 
§ 214 .2(h)(4) (ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 21 4 .2(h)(4)(ii i)(A) to mean not just any baccalaureate or 
higher degree, but one in a specif ic specialty that is directly related to the proffered posit ion. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1 st Cir. 2007) (describing "a degree requirement 
in a specif ic specialt y" as "one that relates directly to the duties and respons ibilities of a particular 
position "). Applying this standard, USCIS regularly approves H-1B petitions for qualif ied al iens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitio ners have regularl y 
been able to establish a mini mum entry requirement in the United States of a baccalaureate or 
higher degree in a specif ic specialty or its equivalent directly related to the duties and 
responsibilities of the particular positio n, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1B visa categor y. 
To determine whether a particular job qualif ies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specif ic duties of the proffered positio n, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupat ion. See generally Defensor v. Meissner, 20 1 F. 3d 384. The critical element is not the title 
of the position nor an employer's self -imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specif ic specialty as the min imum for entry 
into the occupation, as required by the Act. 
B. The Proffered Position 
In the petit ioner's letter dated March 27, 20 14 and its July 25, 20 14 response to the director's RFE, 
the petitioner stated that the duties of the proffered position would include the following tasks: 
In this capac ity, [the beneficiary] will be responsible for the operations of the 
business and he will ensure that all reporting and control procedures relating to the 
(b)(6)
Page 5 
NON-PRECEDENT DECISIOP 
operations, customer service, product quality, hygiene and cleanliness standards, 
maintenance and general administra tion are implemen ted and in place according to 
company's policy. Specifically his duties will be as follows: 
• Maintain high quality products by ensuring compliance with all operations 
procedures. 
• Meet financial objectives by forecasting requirements; preparing an annual budget; 
scheduling expenditures; analyzing variances and ini tiating corrective actions. 
• Achieves operational objectives by contributing information and recommendations 
to strategic plans and reviews; preparing and completing action plans; implemen ting 
productivity, quality and customer-service standards; resolving problems; 
completing audits; identifying trends; determining system improvements; and 
implementing change as necessary. 
• Develop relationships with vendors to ensure we maintain the provision of high 
quality Italian products, food and beverages. 
• Analyze and plan sales levels and profitability. 
• Ensure that the food and beverage team can deliver the highest quality food product, 
with the highest financial return. 
• Ensure correct stock and inventory levels are maintained for both the market, bakery 
and cafe operations. 
• Ensure strict compliance with all relevant hygiene and safety requirements to ensure 
company complies with government and industry standards. 
• Plan and implement new ideas and menu specifications to ensure they fit with 
guidelines and are to the high quality our cus tomers demand. 
• Keep current with latest trends in food nutrition and contribute to the ongoing 
nutritional developments. 
• Consistently review the product range to ensure that all key quality standards are 
maintained. 
• Maintain the food and beverage invoices and manage and monitor expendi tures to 
ensure that costs are kept within allocated budget. 
• Develop marketing and promotional strategies to encourage new customers. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
• Develop and manage incentive schemes to encourage customer loyalty. 
• Review reports on stock and sales, highlighting and acting on any anomalies. 
• Enforce and support all training and development plans for all staff under his 
supervision as per company's polic y. 
• Encourage a training culture within the food and beverage team to develop loyalty 
and a culture that exceeds the very best the industry has to offer. 
• Monitor employees by analyzing store reports, employee scheduling and 
productivity. 
• Create and operate within efficient labor budget, tracking labor spending and 
providing input regarding capital projects and initiatives. 
• Ensure understanding of security procedures by all employees. 
• Provide constant leadership, counselling, advice and feedback to employees and 
provide an environment of openness and trust, with constant feedback and 
performance coaching. 
The bullet-pointed duties listed above were also mentioned m counsel's September 3, 2014 brief 
submitted in support of the appeal. 
C. The Letter From Assistant Professor Submitted As Expert Testimony 
Before reviewing the director's decision, we will first discuss why we will accord no probative 
value to the letter submitted from Professor an Assistant Professor in the 
Hospitality and Tourism Management Department at the 
In his July 29, 2014 letter, Professor (1) describes the credentials that he asserts qualify him 
to assess the nature of the proffered position, (2) briefly lists the duties proposed for the beneficiary, 
and (3) states his belief that the performance of the duties he lists requires "a Bachelor's program in 
Food and Service Management or a closely related field." 
Upon review, we find that Professor letter does not constitute probative evidence of the 
proffered position satisfying any criterion described at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
First, Professor does not provide any information with regard to studies, treatises, statistical 
surveys, authoritative industry sources, U.S. Department of Labor resources, or any other relevant 
and authoritative sources of which he may have specialized knowledge that would merit deference 
or special weight to the particular opinion that he offers in this case. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
Moreover, the letter is not accompanied by, and does not expressly state the full content of, 
whatever documentation and/or oral transmissions upon which it may have been based. For 
instance, Professor does not indicate whether he visited the petitioner 's business premises or 
communicated with anyone affiliated with the petitioner as to what the performance of the general list 
of duties he cites would actually require. Nor does Professor articulate whatever familiarit y he 
may have obtained regarding the particular content of the work products that the petitioner would 
require of the beneficiary. To the contrary, he simply lists the duties of the position in the same bullet­
pointed fashion as provided in the petitioner's support letter, and does not discuss them in any 
meaningful detail. While there is no standard formula or "bright line" rule for producing a persuasive 
opinion regarding the educational requirements of a particular position, a person purporting to provide 
an expert evaluation of a particular position should establish greater knowledge of the particular 
position in question than Professor has done here. 
Furthermore, Professor description of the position does not indicate that he considered, or 
was even aware of, the fact that the petitioner submitted an LCA certified for a wage-level that is 
only appropriate for a comparatively low, entry-level position relative to others within its 
occupation which, as discussed below, signifies that the beneficiary is only expected to possess a 
basic understanding of the occupation. In any event, he nowhere discusses this aspect of the 
proffered position. We consider this a significant omission, in that it suggests an incomplete review 
of the position in question and a faulty factual basis for his ultimate conclusion as to the educational 
requirements of the position at issue. 
As noted earlier, the LCA submitted by the petitioner in support of the instant position was certified 
for use with a job prospect located within the "General and Operations Managers " occupational 
category, SOC (O* NET/OES) Code 11-1021, and a Level I (entr y-level) prevailing wage rate, the 
lowest of the four assignable wage-levels. The Prevailing Wage Determination Policy Guidance 
issued by DOL states the following with regard to Level I wage rates: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the emplo yer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 4 
The proposed duties' level of complexity, uniqueness, and specialization, as well as the level of 
independent judgment and occupational understanding required to perform them, are therefore 
4 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric.Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborccrt.doleta.gov/pdt/ 
NPWHC_Guidance_Revised_11_2009.pdf (last visited Apr. 28, 2015). 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
questionable, as the petitioner submitted an LCA certified for a Level I, entry-level position. A Level I 
wage is only appropriate for a position requiring only "a basic understanding of the occupation" 
expected of a "worker in training" or an individual performing an "internship." That designation 
indicates further that the beneficiary will only be expected to "perform routine tasks that require 
lim ited, if any, exercise of judgment." 5 The LCA's wage-level indicates that the proffered position is 
actually a low-level, entry position relative to others within the same occupation. In accordance with 
the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
beneficiary is only required to possess a basic understanding of the occupation; that he will be 
expected to perform routine tasks requiring li mited, if any, exercise of judgment; that he will be 
closely supervised and his work closely monitored and reviewed for accuracy; and that he will 
receive specific instructions on required tasks and expected results. 
Professor omission of such an important factor as the LCA wage-level significantly 
diminishes the evidentiary value of his assert ions. 
We may, in our discretion, use as advisory opinion statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, we 
are not required to accept or may give less weight to that evidence. Matter of Caron International, 
19 I&N Dec. 791 (Comm'r 1988). 
For all of these reasons, we find that Professor letter is not probative evidence towards 
satisfying any criterion set forth at 8 C.F.R. § 214.2(h)(4 )(iii) (A). For the sake of economy, we hereby 
incorporate the above discussion and findings into our analysis of each of the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(ii i)(A). 
D. Review of the Director's August 14, 2014 Decision Denying the Petition 
We will now discuss the application of each supplemental, alternative criterion at 
8 C.F.R. § 214.2 (h)(4) (ii i)(A) to the evidence in this record of proceeding. 
We will first discuss the criterion at 8 C.F.R. § 214.2(h)( 4)(ii i)(A)(l), which is satisfied by 
establ ishing that a baccalaureate or higher degree, or its equivalent, in a specific specialty is 
normally the min imum requirement for entry into the particular position that is the subject of the 
petition. 
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 it addresses.6 The LCA that the petitioner submitted in support of this petition was 
li The Handbook, which is available in printed form, may also be accessed online at 
http://www.stats.bls.gov/oco/. Our references to the Handbook are from the 2014-15 edition available 
online. 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
certified for a job offer located within the "General and Operations Managers" occupational 
category. 
As noted above, the LCA that the petitioner submitted in support of this petition was certified for a 
job offer located within the "General and Operations Managers" occupational category. This 
occupational category from the SOC is listed in the Handbook under the "Top Executives" 
occupational category. The Handbook states the following with regard to the duties of positions 
falling within the "Top Executives" occupational category: 
Top executives devise strategies and policies to ensure that an organization meets its 
goals. They plan, direct, and coordinate operational activities of companies and 
organizations. 
Duties 
Top executives typically do the following: 
• Establish and carry out departmental or organizational goals, policies, and procedures 
• Direct and oversee an organization's financial and budgetary activities 
• Manage general activities related to making products and providing services 
• Consult with other executives, staff, and board members about general operations 
• Negotiate or approve contracts and agreements 
• Appoint department heads and managers 
• Analyze financial statements, sales reports, and other performance indicators 
• Identify places to cut costs and to improve performance, policies, and programs 
The responsibilities of top executives largely depend on an organization's size. For 
example, an owner or manager of a small organization, such as an independent retail 
store, often is responsible for purchasing, hiring, training, quality control, and day-to­
day supervisory duties. In large organizations, however, top executives typical ly 
focus more on formulating policies and strategic planning, while general and 
operations managers direct day-to-day operations. 
The following are examples of types of top executives: 
Chief executive officers (CEOs), who are also known by titles such as executive 
director, president, and vice president, provide overall direction for companies and 
organizations. CEOs manage company operations, formulate policies, and ensure 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
goals are met. They collaborate with and direct the work of other top executives and 
typically report to a board of directors. 
Companies may also have chief officers who lead various department s or focus on 
specific areas of work: 
• Chief financial officers (CFOs) are accountable for the accuracy of a company's or 
organization's financial reporting, especially among publicly traded companies. They 
direct the organization's financial goals, objectives, and budgets. For example, they 
may oversee the investment of funds and manage associated risks. 
• Chief information officers (CIOs) are responsible for the overall technological 
direction of an organization, which includes managing information technology and 
computer systems. They organize and supervise information-technology-related 
workers, projects, and policies. 
• Chief operating officers (COOs) oversee other executives who direct the ac tivities of 
various departments, such as human resources and sales. They also carry out the 
organization's guidelines on a day-to-day basis. 
• Chief sustainability officers oversee a corporation 's environmental programs. For 
instance, they may manage programs and policies to ensure that the organization 
complies with environmental or other government regulations. 
Mayors, along with governors, city managers, and county administrators, are chief 
executive officers of governments. They typically oversee budgets, programs, and the 
use of resources. Mayors and governors must be elected to office, whereas managers 
and admini strators are typically appoint ed. 
School superintendents and college or university presidents are chief executive 
officers of school districts and postsecondary schools. They manage issues such as 
student achievement, budgets and resources, general operations, and relations with 
government agencies and other stakeholders. 
General and operations managers oversee operations that are too diverse and 
general to be classif ied into one area of management or administration. 
Responsibilities may include formulating policies, managing daily operations, and 
planning the use of materials and human resources. They make staff schedules, assign 
work, and ensure that projects are completed. In some organizations, the tasks of 
chief executive officers may overlap with those of general and operations managers. 
!d. at http:// www .bls.gov/ooh/management/top-executives.htm#tab-2 (last visited Apr. 28, 2015). 
The Handbook states the following with regard to the educat ional requirements necessary for 
entrance into positions located within the "Top Executives" occupational category: 
(b)(6)
NON-PRECEDENT DECIS!OJ 
Page 11 
Although education and training requirements vary widely by position and industry, 
many top executives have at least a bachelor's degree and a considerable amount of 
work experience. 
Education 
Many top executives have a bachelor's or master's degree in business administration 
or in an area related to their field of work. Top executives in the public sector often 
have a degree in business administration, public administration, law, or the liberal 
arts. Top executives of large corporations often have a master of business 
administration (MBA). College presidents and school superintendents typically have 
a doctoral degree in the field in which they originally taught or in education 
administration. 
Work Experience in a Related Occupation 
Many top executives advance within their own firm, moving up from lower level 
managerial or supervisory position s. However, other companies may prefer to hire 
qualified candidates from outside their organization. Top executives that are 
promoted from lower level positions may be able to substitute experience for 
education to move up in the company. For example, in industries such as retail trade 
or transportation, workers without a college degree may work their way up to higher 
levels within the company to become executives or general managers. 
Chief executives typically need extensive managerial experience. Executives are also 
expected to have experience in the organization's area of specialty . Most general and 
operations managers hired from outside an organization need lower level supervisory 
or management experience in a related field. 
Some general managers advance to higher level managerial or executive positions. 
Company training programs, executive development programs, and certification can 
often benefit managers or executives hoping to advance. Chief executive officers 
often become a member of the board of directors. 
Licenses, Certifications, and Registrations 
Top executives may complete a certification program through the Institute of 
Certified Professional Managers to earn the Certified Manager (CM) credential. To 
become a CM, candidates must meet education and experience requirements and pass 
three exams. 
Although not mandatory, certification can show management competency and 
potential leadership skills. Certification can also help those seeking advancement or 
can give jobseekers a competitive edge. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
Important Qualities 
Communication skills. Top executives must be able to communicate clearly and 
persuasiv ely. They must effectively discuss issues and negotiate with others, direct 
subordinates, and explain their policies and decisions to those within and outside the 
organization. 
Decision-making skills. Top executives need decision-making skills when setting 
policies and managing an organization. They must assess different options and choose 
the best course of action, often daily. 
Leadership skills. Top executives must be able to lead an organization successfully 
by coordinating policies, people, and resources. 
Management skills. Top executives must organize and direct the operations of an 
organization. For example, they must manage business plans, employees, and 
budgets. 
Problem-solving skills. Top executives need problem-solving skills after identifying 
issues within an organization. They must be able to recognize shortcomings and 
effectively carry out solutions. 
Time-management skills. Top executives must be able to do many tasks at the same 
time, typically under their own direction, to ensure that their work gets done and that 
they meet their goals. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 
ed., "Top Executives, " http://www .bls.gov /ooh/management/top-executives.htm#tab-4 (last visited 
Apr. 28, 2015). 
These statements from the Handbook do not indicate that a bachelor's degree in a specific specialty, 
or the equivalent, is normally required for entry into positions located within this occupational 
category. Instead, the Handbook's information indicates that these positions generally impose no 
specific degree requirement on individuals seeking employment. The statement that "many" top 
executives have college degrees is not synonymous with the "normally required" standard imposed by 
this criterion. To the contrary, that statement does not even necessarily indicate that a majority of top 
executives possess such a degree. While the Handbook indicates that top management positions may 
be filled by individual s with a broad range of degrees, its subsequent discussion of the training and 
education necessary for such employment clearly states that companies also hire executives based on 
lower-level experience within their own organizations or management experience with another 
business. Moreover, the Handbook does not state that those positions which do require a bachelor's 
degree or the equivalent require that the degree be in a specific specialty. 
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. There must be a close correlation between the 
required specialized studies and the position; thus, the mere requirement of a degree, without further 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
specification, does not establish the pos1t10n as a specialty occupation. Cf Matter of Michael Hertz 
Associates, 19 I&N Dec. 558 (Comm'r 1988) ("The mere requirement of a college degree for the sake of 
general education, or to obtain what an employer perceives to be a higher caliber employee, also does not 
establish eligibility."). Thus, while a general-purpose bachelor's degree 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. See Royal Siam Corp. v. Chertoff, 484 F.3d at 
14 7 (1st Cir. 2007). 
Accordingly, as the Handbook indicates that entry into positions located within the Top Executives 
occupational category does not normally require at least a bachelor's degree or the equivalent in a 
specific specialty or its equivalent, it does not support the proffered position as being a specialty 
occupation. 
Accordingly, inclusion of the proffered position within this occupational category is not in itself 
sufficient to establish the position as one for which the normal minimum entry requirement is at 
least a bachelor 's or higher degree, or the equivalent, in a specific specialty. Accordingly, as the 
Handbook indicates that entry for positions within the Top Executives occupational category does 
not normally require at least a bachelor's degree or the equivalent in a specific specialty or its 
equivalent, it does not support the proffered position as being a specialty occupation. 
The materials from O*NET OnLine do not establish that the proffered position satisfies the first 
criterion described at 8 C.F.R. § 21 4.2(h)(4)(iii)(A), either. O*NET OnLine is not particularly 
useful in determining whether a baccalaureate degree in a specific specialty, or its equivalent, is a 
requirement for a given position, as O*NET OnLine's Job Zone designations make no mention of 
the specific field of study from which a degree must come. As was noted previously, we interpret 
the term "degree" in the criteria at 8 C.F.R. § 21 4.2( 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 proffered position. The 
Specialized Vocational Preparation (SVP) rating is meant to indicate only the total number of years 
of vocational preparation required for a particular position. It does not describe how those years are 
to be divided among training, formal education, and experience and it does not specify the particular 
type of degree, if any, that a position would require. For all of these reasons, the information from 
O*NET OnLine is of little evidentiary value to the issue presented on appeal. 
Nor does the record of proceeding contain any persuasive 8 documentary evidence from any other 
relevant authoritative source establishing that the proffered position's inclusion within any of these 
� 
Counsel submitted information from www.careerinfonet.org for General and Operations Managers in 
Florida, which states that a bachelor's degree is the typical education needed for entry. However, it does not 
state that a baccalaureate degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position. Counsel also submitted an online article from U.S. News 
and World Report which states that many operations managers have a bachelor's or master's degree in 
business administration, but the specific degree required depends on the hiring organization. The article does 
not mention the specific degrees. In addition, business administration is a general purpose degree. As 
discussed supra, USCIS interprets 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. Although a general-purpose 
bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
occupational categories is sufficient in and of itself to establish the proffered position as, in the 
words of this criterion, a "particular position" for which "[a] baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry." 
Finally, it is noted once again that the petitioner submitted an LCA certified for a job prospect with 
a wage-level that is only appropriate for a comparatively low, entry-level position relative to others 
within its occupation, which si?nifies that the beneficiary is only expected to possess a basic 
understanding of the occupation. 
As the evidence in the record of proceeding does not establish that at least a baccalaureate degree in 
a specific specialty, or its equivalent, is normally the minimum requirement for entry into the 
particular position that is the subject of this petition, the petitioner has not satisfied the criterion 
described at 8 C.F.R. § 214.2 (h)(4)(iii)(A)(l). 
Next, we find that the evidence of record does not satisfy the first of the two alternative prongs of 
8 C.F.R. § 214.2(h )(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that 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. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 
(1st Cir. 2007). 
We therefore find none of these resources persuasive. 
Again, the Prevailing Wage Determination Policy Guidance (available at 
http://www .foreignlaborcert.doleta.gov/ pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf (last visited Apr. 28, 
2015)) issued by DOL states the following with regard to Level I wage rates: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered [emphasis in original]. 
The proposed duties' level of complexity, uniqueness, and specialization, as well as the level of independent 
judgment and occupational understanding required to perform them, are questionable, as the petitioner submitted 
an LCA certified for a Level I, entry-level position. The LCA's wage-level is appropriate for a proffered position 
that is actually a low-level, entry position relative to others within the occupation. In accordance with the 
relevant DOL explanatory information on wage levels, by submitting an LCA with a Level I wage rate, the 
petitioner effectively attests that the beneficiary is only required to possess a basic understanding of the 
occupation; that she will be expected to perform routine tasks requiring limited, if any, exercise of judgment; 
that he will be closely supervised and his work closely monitored and reviewed for accuracy; and that he will 
receive specific instructions on required tasks and expected results. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1 ) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that the industry requires a degree; 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 individual s. " See Shanti, Inc. v. Reno, 36 F. Supp. 2d at 116 5 
(D.Minn. 19 99) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 10 95, 1102 (S.D.N.Y. 19 89)). 
Here and as already discussed, the petitioner has not established that its proffered position is one for 
which the Handbook reports an industry-wide requirement for at least a bachelor's degree in a specific 
specialty or its equivalent. 
The petitioner has provided job postings from a restaurant group, a restaurant franchisor, a pizza 
shop and a coffee shop. The advertisements submitted by the petitioner do not establish that these 
employers are both (1) in the petitioner's industry and (2) "similar " to the petitioner in size, scope, 
and scale of operations, business efforts, expenditures, or any other relevant extent. Furthermore, 
all of the advertisements require experience, ranging from two to five years. However, as noted 
above the petitioner submitted an LCA certified for a Level I, entry-level position, therefore 
indicating that the positions are not parallel to one another. The advertisements do not establish that 
the positions are parallel to the proffered position and that they are located in organizations that are 
similar to the petitioner; and they do not satisfy this prong of 8 C.F.R. § 214.2( h)(4)(iii)(A)(2). 10 
More importantly, some of these advertisements fail to state a requirement for a bachelor's degree in 
a specific specialty, or the equivalent. For instance, they accept solely a bachelor's degree, or a 
bachelor's degree in business, which is a general purpose degree. 
Also, there are no submissions from professional associations, individuals, or similar firms in the 
petitioner's industry attesting that individuals employed in positions parallel to the proffered position 
are routinely required to have a minimum of a bachelor's degree in a specific specialty or its equivalent 
for entry into those positions. 
Therefore, the evidence of record does not satisfy the first of the two alternative prongs described at 
8 C.F.R. § 214.2( h)(4)(iii)(A)(2), as the evidence of record does not establish a requirement for at 
10 
USCIS "must examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be proven 
is probably true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). As just discussed, the record of 
evidence does not establish the relevance of the job advertisements submitted to the position proffered in this 
case. Even if their relevance had been established, the evidence of record does not demonstrate what 
inferences, if any, can be drawn from these few job postings with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations in the same industry. See 
generally Earl Babbie, The Practice of Social Research 186-228 (1995). 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
least a bachelor's degree in a specific specialty or its equivalent that is common for positions that 
are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the petitioner. 
Next, we find that the evidence of record does not satisfy the second alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which provides that "an employer may show that its particular 
position is so complex or unique that it can be performed only by an individual with a degree." 
In this particular case, the evidence of record does not credibly demonstrate that the duties the 
beneficiary will perform on a day-to-day basis constitute a position so complex or unique that it can 
only be performed by a person with at least a bachelor's degree in a specific specialty or its 
equivalent. 
The record of proceeding does not contain evidence establishing relative complexity or uniqueness 
as aspects of the proffered position, let alone that the position is so complex or unique as to require 
the theoretical and practical application of a body of highly specialized knowledge such that a 
person with a bachelor's or higher degree in a specific specialty or its equivalent is required to 
perform the duties of that position. Rather, we find, that, as reflected in this decision's earlier 
quotation of duty descriptions from the record of proceeding, the evidence of record does not 
distinguish the proffered position from other positions located within the "Top Executives " 
occupational category, which, the Handbook indicates, do not necessarily require a person with at 
least a bachelor's degree in a specific specialty or its equivalent to enter those positions. 
The statements of counsel and the petitioner with regard to the claimed complex and unique nature 
of the proffered position are acknowledged. However, those assertions are undermined by the fact 
that the petitioner submitted an LCA certified for a job prospect with a wage-level that is only 
appropriate for a comparatively low, entry-level position relative to others within its occupation. 
We incorporate here by reference and reiterate our earlier discussion regarding the LCA and its 
indication that the petitioner would be paying a wage-rate that is only appropriate for a low-level, 
entry position relative to others within the occupation, as this factor is inconsistent with the relative 
complexity and uniqueness required to satisfy this criterion. Based upon the wage rate selected by 
the petitioner, the beneficiary is only required to have a basic understanding of the occupation. 
Moreover, that wage rate indicates that the beneficiary will perform routine tasks requiring limited, 
if any, exercise of independent judgment; that the beneficiary's work will be closely supervised and 
monitored; that he will receive specific instructions on required tasks and expected results; and that 
his work will be reviewed for accuracy. 
Accordingly, given the Handbook's indication that not all positions located within the "Top 
Executiv es" occupational category require at least a bachelor's degree in a specific specialty, or the 
equivalent, for entry, it is not credible that a position involving limited, if any, exercise of 
independent judgment, close supervision and monitoring, receipt of specific instructions on required 
tasks and expected results, and close review would contain such a requirement. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
The evidence of record therefore does not establish that the beneficiary's responsibilities and day-to­
day duties comprise a position so complex or unique that the position can be performed only by an 
individ ual with at least a bachelor's degree in a specific specialty or its equivalent. 
Consequently, as it has not been shown that the particular position for which this petition was filed 
is so complex or unique that it can only be performed by a person with at least a bachelor's degree 
in a specific specialty or its equivalent, the evidence of record does not satisfy the second alter native 
prong of 8 C.F.R. § 21 4. 2(h)(4)(iii)(A) (2). 
We turn next to the criterion at 8 C.F.R . § 214. 2(h)(4)(iii)(A)( 3), which entails an employer 
demonstrating that it normally requires a bachelor's degree in a specific specialty or its equivalent 
for the position. 
Our review of the record of proceeding under this criterion necessarily includes whatever evidence 
the petitioner has submitted with regard to its past recruiting and hiring practices and employees 
who previously held the position in question. 
To satisfy this criterion, the record must contain documentary evidence demonstrating that the 
petitioner has a history of requiring the degree or degree equivalency, in a specific specialty, in its prior 
recruiting and hiring for the position . Additionally, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-cali ber candidates but 
is necessitated by the performance requirements of the proffered position. 11 
Were USCIS limited solely to reviewing a petitioner 's claime d self-imposed requirements, then any 
individual with a bachelor's degree could be brought to the United States to perform any occupation 
as long as the employer artificially created a token degree requirement, whereby all individuals 
employed in a particular position possessed a baccalaureate or higher degree in the specific 
specialty or its equivale nt. See Defensor v. Meissner, 20 1 F. 3d at 387. In other words, if a 
petition er's assertion of a particular degree requirement is not necessitated by the actual 
performance requirements of the proffered position, the position would not meet the statutory or 
regulatory definition of a specialty occupation . See section 214(i)(1) of the Act; 
8 C.F.R. § 21 4.2(h)(4)(ii) (defining the term "specialty occupation "). 
The director 's May 6, 20 14 RFE specifically requested the petitioner to document its past recruiting 
and hiring history with regard to the proffered positio n. The director stated : 
If you have previously employed individuals in the position of Operations Manager, 
submit documentary evidence such as W-2 Forms and copies of degrees and 
transcripts to verify: 
11 
Any such assertion would be undermined in this particular case by the fact that the petitioner indicated in 
the LCA that its proffered position is a comparatively low, entry-level position relative to others within the 
same occupation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
• The number of individuals you have employed in this position in the past ; 
• The level of education held by each individual; and 
• The field of study in which the degree was earned. 
The record does not include any of the types of evidence mentioned in the RFE . While a first-time 
hiring for a position is certainly not a basis for precluding a position from recognition as a specialty 
occupation, it is unclear how an employer that has never recruited and hired for the position would 
be able to satisfy the criterion at 8 C.F.R. § 214 .2(h)( 4)(iii)(A)( 3), which requires a demonstration 
that it normally requires at least a bachelor's degree in a specific specialty or its equivalent for the 
. . 12 
pOSitlOn. 
As the record of proceeding does not demonstrate that the petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 21 4.2(h)( 4)(iii)(A)( 3). 
Next, we find that the evidence of record does not satisfy the criterion at 
8 C.F.R. § 214. 2(h)(4)(iii)(A)(4), which requires the petitioner to establish that the nature of the 
proffered position's 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 the specific specialty or 
its equivalent. 
In reviewing the record of proceeding under this criterion, we reiterate our earlier discussion regarding 
the Handbook's entries for positions falling within the "Top Executives " occupational category . 
Again, the Handbook does not indicate that a bachelor's degree in a specific specialty, or the 
equivalent, is a standard, minimum requirement to perform the duties of such positions (to the 
contrary, it indicates precisely the opposite). With regard to the specific duties of the position 
proffered here, we find that the record of proceeding lacks sufficient, credible evidence establishing 
that they are so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a bachelor's degree in a specific specialty, or the equivalent. 
Finally, we find that both on its own terms and also in comparison with the three higher wage-levels 
that can be designated in an LCA, by the submission of an LCA certified for a Level I wage-level, 
the petitioner effectively attests that the proposed duties are of relatively low complexity as 
compared to others within the same occupational category. This fact is materially inconsistent with 
the level of complexity required by this criterion. 
As earlier noted, the Prevailing Wage Determination Policy Guidance issued by the U.S. 
Department of Labor (DOL) states the following with regard to Level I wage rates : 
Level I (entry) wage rates are assigned to job offers for beginning level employees who 
12 
See also Caremax Inc. v. Holder, _ F.Supp. 2d _, 2014 WL 1493621 (N.D. Cal. 2014) ("If this is [the 
petitioner's] first-ever public relations specialist position, then the company cannot claim that it typically 
requires a bachelor's degree in English .") 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
have only a basic understanding of the occupation. These employees perform routine 
tasks that require limited, if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees 
may perform higher level work for training and developmental purposes . These 
employees work under close supervision and receive specific instructions on required 
tasks and results expected. Their work is closely monitored and reviewed for accuracy. 
Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered [emphasis in origina l]. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http: //www.foreignlaborcert.dole ta . 
gov /pdf/NPWHC _Guidance_ Revised _1 1_ 2009 .pdf (last visited Apr. 28, 2015). 
The pertinent guidance from DOL, at page 7 of its Prevailing Wage Determination Policy Guidance 
describes the next higher wage-level as follows: 
I d. 
Level II (qualified) wage rates are assigned to job offers for qualified employees 
who have attained, either through education or experience, a good understanding of 
the occupation. They perform moderately complex tasks that require limited 
judgment. An indicator that the job request warrants a wage determination at Level 
II would be a requirement for years of education and/or experience that are generally 
required as described in the O*N ET Job Zones. 
The above descriptive summary indicates that even this higher-than-designated wage level is 
appropriate for only "moderately complex tasks that require limited judgment." The fact that this 
higher-than-here-assigned, Level II wage-rate itself indicates performance of only "moderately 
complex tasks that require limited judgment," is very telling with regard to the relative! y low level 
of complexity imputed to the proffered position by virtue of the petitioner 's Level I wage-rate 
designation. 
Further, we note the relatively low level of complexity that even this Level II wage-level reflects 
when compared with the two still-higher LCA wage levels, neither of which was designated on the 
LCA submitted to support this petition. 
The aforementioned Prevailing Wage Determination Policy Guidance describes the Level III wage 
designation as follows: 
Level III (experienced) wage rates are assigned to job offers for experienced 
employees who have a sound understanding of the occupation and have attained, 
either through education or experience, special skills or knowledge. They perform 
tasks that require exercising judgment and may coordinate the activities of other 
staff. They may have supervisory authority over those staff. A requirement for years 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
!d. 
of experience or educational degrees that are at the higher ranges indicated in the 
O*N ET Job Zones would be indicators that a Level III wage should be considered. 
Frequently, key words in the job title can be used as indicators that an employer's job 
offer is for an experienced worker. ... 
The Prevailing Wage Determination Policy Guidance describes the Level IV wage designation as 
follows: 
/d. 
Level IV (fully competent) wage rates are assigned to job offers for competent 
employees who have sufficient experience in the occupation to plan and conduct 
work requiring judgment and the independent evaluation, selection, modification, 
and application of standard procedures and techniques. Such employees use 
advanced skills and diversified knowledge to solve unusual and complex problems. 
These employees receive only technical guidance and their work is reviewed only for 
application of sound judgment and effectiveness in meeting the establishment's 
procedures and expectations. They generally have management and/or supervisory 
responsibilities. 
Here we again incorporate our earlier discussion and analysis regarding the implications of the 
petitioner's submission of an LCA certified for the lowest assignable wage-level. As already noted, 
by virtue of this submission, the petitioner effectively attested to DOL that the proffered position is 
a low-level, entry position relative to others within the same occupation, and that, as clear by 
comparison with DOL's instructive comments about the next higher level (L evel II), the proffered 
position did not even involve "moderately complex tasks that require limited judgment" (the level 
of complexity noted for the next higher wage-level, Level II). 
For all of these reasons, the evidence in the record of proceeding does not establish that the 
proposed duties meet the specialization and complexity threshold at 8 C.F.R. 
§ 21 4.2(h)(4)(iii)(A)(4). 
As the evidence of record does not satisf y at least one of the criteria at 8 C.F.R. 
§ 214 .2(h)( 4)(i ii)(A), it cannot be found that the proffered position is a specialty occupation. 
III. BEN EFICIARY QUALIFICATIONS 
The director also found that the beneficiary would not be qualif ied to perform the duties of the 
proffered position if the job had been determined to be a specialty occupation. However, a 
beneficiary's credentials to perform a particular job are relevant only when the job is found to be a 
specialty occupation. As discussed in this decision, the proffered position does not require a 
baccalaureate or higher degree in a specific specialty or its equivalent. Therefore, we need not and 
will not address the beneficiary's qualif ications further, except to note for the record that we agree 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
with the director's determination that the evidence of record does not demonstr ate that the 
beneficiary qualifies to perform the duties of a specia lty occupation. 
IV. PREVIOUS H-1B APPROVAL 
The petitioner submitted evidence that USCIS approved a petition counsel filed on behalf of one of 
his other clients for an operations manager in 1997. The director's decision does not indicate 
whether she reviewed the prior approval of the other nonimmig rant petition. If the previous 
nonimmigrant petition was approved based on the same unsupported and contr adictory assertions 
that are contained in the current record, the approval would constitute material and gross error on 
the part of the director. We are not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 l&N Dec. 593, 597 (Comm 'r 1988). It would 
be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding 
precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 
485 U.S. 1008 (1988). 
A prior approval does not compel the approval of a subsequent petition or relieve the petitioner of 
its burden to provide sufficient documentation to establish current eligibility for the benefit sought. 
55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). A prior approval also does not preclude USCIS from 
denying an extension of an original visa petition based on a reassessment of eligibility for the 
benefit sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 
2004 )� Furthermore, the our authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director had approved the 
nonimmi grant petitions on behalf of the beneficiary, we would not be bound to follow the 
contrad ictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
V. CONCLUSION AND ORDER 
For the reasons disc ussed above, we conclude (1) that the evidence of record does not demonstrate 
that the duties of the proffered position ' comprise a specialty occupation; and (2) that the beneficiary is 
qualified to perform the duties of a specialty occupation. 
In visa petition proceedings, it is the petitioner's burden to establish eligibilit y for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.