dismissed H-1B Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 16328195 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 19, 2021 
The Petitioner, full-service restaurant, seeks to temporarily employ the Beneficiary as a "general 
manager" under the H-1B nonimmigrant classification for specialty occupations. Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that (1) the proffered position is a specialty occupation, and (2) the Beneficiary does not 
possess the equivalent of a U.S. bachelor's degree in any specific specialty. On appeal, the Petitioner 
submits a brief and asserts that the Director erred by denying the petition. The matter is now before 
us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence.1 We review the questions in this matter de nova. 2 Upon de nova 
review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a 
1 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 3 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
B. Analysis 
The Petitioner stated that the Beneficiary will be employed as a "general manager" and that the 
position requires a minimum of a bachelor's degree, or the foreign equivalent, in hospitality 
management or a related degree. The Petitioner initially provided a list of duties, which was expanded 
and updated with their response to the Director's request for evidence (RFE). While we will not list 
each duty here, we have reviewed and considered each one. 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. When determining whether a position 
is a specialty occupation, we look at the nature of the business offering the employment and the 
3 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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"). 
2 
description of the specific duties of the position as it relates to the performance of those duties within 
the context of that particular employer's business operations. 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not adequately established the services the Beneficiary will perform, 
which precludes a determination of whether the proffered position qualifies as a specialty occupation 
under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. 
§ 214.2(h)(4)(ii) and (iii)(A).4 
On the labor condition application (LCA) 5 submitted in support of the H-1B petition, the Petitioner 
designated the proffered position under the occupational category '"Food Service Managers" 
corresponding to the standard occupational classification code (SOC) 11-9051 from the Occupational 
Information Network (O*NET), at a wage level 11 rate. According to O*NET's description, positions 
located within the "Food Service Managers" occupation "[p]lan, direct, or coordinate activities of an 
organization or department that serves food and beverages." 6 A review of the O*NET tasks indicate 
this occupation's management scope is limited to food services and does not include oversight of other 
tasks such as marketing or operations outside of food service. 7 
The Petitioner's description of the proffered position creates ambiguity in the record regarding the 
nature of the position and whether the position actually falls within the occupational category 
designated on the LCA. The Petitioner's marketing, advertising, budgeting, and operational duties 
appear atypical duties generally performed by individuals working in positions located within the 
"Food Service Managers" occupation. For example, the Petitioner's job duties that focus on marketing 
and advertising include "[e]stablishes restaurant business plan by surveying demand, ... identifying 
and evaluating competitors; preparing financial, marketing, and sales projections and analyses"; 
"developing and implementing strategies to increase sales"; and "developing and implementing 
marketing, advertising, public and community relations programs." Advertising and marketing duties 
are not found under the O*NET tasks for positions located within the "Food Service Managers" 
occupation, but they do appear under the tasks for SOC code 11-1021, "General and Operations 
Managers," which includes "[d]evelop or implement product-marketing strategies, including 
advertising campaigns or sales promotions," 8 and SOC 11-2021, "Marketing Managers," who 
"[i]dentify, develop, or evaluate marketing strategy, based on knowledge of establishment objectives, 
market characteristics, and cost and markup factors," and "[fJormulate, direct, or coordinate marketing 
4 The Petitioner submitted documentation to support the H-1B 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. 
5 A petitioner submits the LCA to the U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1B 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.731(a). 
6 O*NET Summaiy Report for "Food Service Managers," https://www.onetonline.org/link/summary/11-9051.00 (last 
visited Jul. 19, 2021). 
7 Id. 
8 O*NET Summary Report for "Marketing Managers," https://www.onetonline.org/link/summary/11-2021.00 (last visited 
Jul. 19, 2021). 
3 
activities or policies to promote products or services, working with advertising or promotion 
managers." 9 
Moreover, the Petitioner's budgeting, financing, and operational duties are not consistent with the 
selected "Food Service Managers" occupation, either. The Petitioner's duties of "developing 
financing; establishing banking relationships; preparing strategic and annual forecasts and 
budgets; . . . establishing and monitoring financial controls" and "[m]aintain[ing] operations by 
preparing policies and guidelines" implies the Beneficiary will have operational control beyond just 
food services. Also, the preparation of budgets and developing financing is beyond the O*NET tasks 
for "Food Service Managers," as the occupation works within a set and authorized budget. 
Specifically, O*NET states the individuals working in positions located within the "Food Service 
Managers" occupation "monitor budgets and payroll records, and review financial transactions to 
ensure that expenditures are authorized and budgeted." 10 The Petitioner's job duties seem more 
consistent with SOC code 11-1021, "General and Operations Managers," which includes the 
occupational description and tasks of "formulating policies, managing daily operations" and 
"[d]irect[ing] or coordinat[ing] financial or budget activities to fund operations, maximize 
investments, or increase efficiency." 11 Therefore, we conclude some of the position's duties are 
beyond the description of the "Food Service Managers" SOC code and appear more closely aligned to 
the duties of the "General and Operations Mangers" and "Marketing Managers" SOC codes. With 
these ambiguities in the record regarding the duties of the position, we cannot ascertain the substantive 
nature of the position. 
The Petitioner provided an opinion authored b~ I Dean Emeritus of Business at .... l __ _, 
I I University, to support their petition. I I states the Beneficiary's duties require 
expertise in "business planning, strategy, marketing, sales, marketing research, forecasting, 
networking, competitor profiling & analysis, finance, ... data analysis, information systems" and 
"budgeting, process improvement, financial control systems, internal controls, quality, finance, 
operations management, financial metrics, forecasting, economics, financial information systems, 
strategy, statistics, business development." Some of the required expertise to perform these duties, 
such as strategy, marketing, sales, market research, finance and operations management appear outside 
the scope of positions in the "Food Service Managers" occupation. I I does not address 
or explain the apparent conflict between the Petitioner's designation of the occupation on the certified 
LCA and the various duties that fall outside the parameters of that occupation. Also.I I 
does not explain how expertise in data analysis and information systems is necessary for the 
occupation. I l's stated required expertise to perform the position casts yet more doubt 
on the claim that the proffered position is actually located within the "Food Service Managers" 
occupation. 
In general, if the duties of a proffered position involve aspects of more than one occupational category 
(i.e., "Food Service Managers" and "General and Operations Managers"), U.S. Department of Labor's 
(DOL) "Prevailing Wage Determination Policy Guidance" states that the employer "should default 
9 O*NET Summaiy Repmi for "General and Operations Managers," https://www.onetonline.org/link/summary/11-
1021.00 (last visited Jul. 19, 2021). 
10 O*NET Summary Report for "Food Service Managers," supra. 
11 O*NET Summary Report for "General and Operations Managers," supra. 
4 
directly to the relevant O*NET-SOC occupational code for the highest paying occupation."12 A Level 
11 position located within the "General and Operations Managers" (SOC code 11-1021) occupational 
category would necessitate a higher wage of $67,496 rather than the offered wage of $60,000 per 
year.13 Likewise a Level 11 position located within the "Marketing Managers" (SOC code 11-2021) 
occupational category would mandate a higher wage of $64,418.14 Notably, such a wage disparity 
highlights the difference between the "Food Service Managers" and the "General and Operations 
Managers" or "Marketing Managers" occupational categories generally, and more specific to this case, 
the significance of the Petitioner's choice of the lower-paying occupational category. In sum, since 
the position's broad description lacks specificity because it includes duties that more likely pertain to 
other occupations, we cannot determine the substantive nature of this particular position. Therefore, 
we cannot conclude that the actual duties of the proffered position require a bachelor's degree in a 
specific specialty, or its equivalent, nor determine that the duties actually correspond to the certified 
LCA.1s 
Further, even if we concluded that the position is a "Food Service Managers" occupation, which has 
not been established, we would be compelled to note that positions located within the "Food Service 
Managers" occupational category are generally not specialty occupations. We recognize the DOL's 
Occupational Outlook Handbook (Handbook) as a source on the duties and educational requirements of 
the wide variety of occupations that it addresses. The subchapter of the Handbook titled "How to Become 
a Food Service Manager" states, in relevant part, "[m]ost applicants qualify with a high school diploma 
and several years of work experience in the food service industry as a cook, waiter or waitress, or counter 
attendant.16 Some applicants have received additional training at a community college, technical or 
vocational school, culinary school, or 4-year college .... [A] bachelor's degree is not required."17 The 
Handbook does not establish that at least a bachelor's degree in a specific specialty, or its equivalent, is 
12 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.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
13 The Petitioner provided an LCA certified on June 17, 2020 for a position located in~I ---~I Hawaii. The wages 
for SOC 11-1021, at the time of the LCA's certification can be found on the Foreign Labor Certification Data Center 
Online Wage Library: https://www.flcdatacenter.com/OesQuickResults.aspx?code=11-
1021&area~ !&year=20&source=1. 
14 The wages for SOC 11-2021, at the time of the LCA's certification can be found on the Foreign Labor Certification Data 
Center Online Wage Library: https://www.flcdatacenter.com/OesQuickResults.aspx?code=11-
2021&area~ ~&year=20&source=1. 
15 The LCA serves as the critical mechanism for enforcing section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(1). See Labor 
Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations 
and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. 
Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]."). While DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and 
Immigration Services (USCIS), DOL regulations note that the Department of Homeland Security (DHS) (i.e., its 
immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed 
for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b). The regulation at 20 C.F.R. § 
655.705(b) requires that USCIS ensure that "the petition is supported by an LCA which conesponds with the 
petition .... " 
16 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Food Service Managers, at 
https://www.bls.gov/ooh/management/food-service-managers.htm (last visited Jul. 19, 2021). 
17 Id. 
5 
normally the minimum requirement for entry. The Handbook indicates most applicants qualify with a 
high school diploma and several years of experience, but it does not indicate that such experience must 
be equivalent to at least a bachelor's degree in a specific specialty. Further, although the Handbook states 
that "some postsecondary education" is increasingly preferred for manager positions, it also specifically 
states that "a bachelor's degree is not required." As such, the Handbook indicates this occupation is not 
a specialty occupation requiring at least a bachelor's degree in a specific specialty. 
Moreover, the O*NET's summary report for SOC code 11-9051, "Food Service Managers" serves as 
additional evidence that this is not a specialty occupation. The O*NET Summary Report does not 
establish that a bachelor's degree in a specific specialty, or the equivalent, is normally required.18 It 
provides general information regarding the occupation, but it does not support that the proffered 
position requires a bachelor's degree in a specific specialty, or the equivalent. Instead, O*NET assigns 
these positions a "Job Zone Two" rating, which states "[t]hese occupations usually require a high 
school diploma." 19 Further, the summary report shows at least 88% of the respondents do not have at 
least a bachelor's degree.2° For all of these reasons, O*NET does not establish the proffered position 
as a specialty occupation, either. 
Nor do the three opinion letters provided br the Petitioner from (1)1 I (2)1 I I I of I and (3) I I provide sufficient and 
consistent detail to ascertain the position requires the theoretical and practical application of a body of 
highly specialized knowledge, and attainment of at least a baccalaureate degree in a specific specialty, 
or its equivalent, as required for classification as a specialty occupation. First, I I states that 
the proffered position would be "unique, complex and specialized" and would require a specialized 
undergraduate degree; however, he does not discuss the duties in any great detail nor state why a 
bachelor's degree in a specialized field would be necessary. Also.I I states the individual 
holding the position "must oversee the restaurants (sic) operation but must be the business liaison to 
the restaurant." However, these duties do not suppmi the selected "Food Service Managers" 
occupation, which is limited to supervising food services. As such, I l's letter does not 
demonstrate the position requires at least a bachelor's degree in a specific specialty, or the equivalent, 
nor does it demonstrate the position is in the "Food Service Managers" occupation. 
~----~l's opinion also does not support a conclusion that the proffered position requires at 
1east a specialized bachelor's degree, or the equivalent, either. She concludes the duties are specialized 
and complex and tliat only a degreed professional with the "appropriate experience" can perform the 
proffered position, because the position would have to run the business within a resort. However, she 
does not clearly articulate why running a business within a resort is so "specialized and complex" or 
"complex or unique" that a bachelor's degree in a specific specialty, or the equivalent, would be 
necessary. Nor does she elaborate how much "appropriate experience" is needed or if a beneficiary's 
experience alone would be enough to perform the duties. She also asserts that bachelor's degrees are 
more common in the industry today; but has not provided probative evidence to support her 
18 As indicated above, a requirement for a bachelor's degree alone is not sufficient. We have consistently interpreted the 
term "degree" to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to 
the proposed position. See Royal Siam Corp., 484 F.3d at 147; Defensor, 201 F.3d at 387. 
19 O*NET Summary Report for "Food Service Managers," supra. 
20 According to the O*NET Summary Rep01i, 55% of respondents have a "[h]igh school diploma or equivalent"; 18% 
have "[s]ome college, no degree"; and 15% have "[l]ess than high school diploma." Id. 
6 
conclusion. Therefore, I I letter also does not demonstrate the proffered position is 
a specialty occupation requiring at least a bachelor's degree in a specific specialty. 
Nor does I I letter establish that the proffered position is a specialty occupation. 
I !asserts that a bachelor's degree in hospitality management is the required minimum 
because the position requires "specialized and complex knowledge of hospitality management, 
restaurant operations, [food and beverage] operations, and business administration." However, 
I !does not discuss why a bachelor's degree in hospitality management, or a related degree, 
is required to perform these duties. For example, he does not discuss other methods that could lead to a 
sufficiently similar knowledge set, such as some amount of training or experience to gain this knowledge 
or alternate unrelated degrees that would also provide a similarly broad base of knowledge. The 
professor also does not address the Handbook's report that a high school diploma and several years of 
experience can qualify an individual for this occupation. Nor does he address the similar information 
contained in O*NET. I lalso states that duties are complex and involve technical aspects 
of hospitality management and business administration and provides a list of sample courses that could 
provide this knowledge. However, whether or not a particular beneficiary has completed a specialized 
course of study directly related to the proffered position is irrelevant to the issue of whether a 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. Although the Petitioner claims such 
coursework will prepare a beneficiary for the duties of the proffered position, the test to establish a 
position as a specialty occupation is not the education or experience of a particular beneficiary, but 
whether the position itself requires at least a bachelor's degree in a specific specialty, or its 
equivalent.21 Again, the professor does not appear aware that the Petitioner designated the proffered 
position as falling within the "Food Service Managers" occupation, not a "General and Operations 
Managers," occupation. The professor's opinion does not resolve the lack of clarity regarding the 
nature of the proffered position. Further, he has not sufficiently demonstrated how or why the 
Petitioner's position, designated as a "Food Service Managers" position, requires at least a bachelor's 
degree in a specialized field. Thus, I I opinion is not persuasive. In sum, the opinion 
letters do not assist in establishing the substantive nature of the position and do not provide a sufficient 
basis to establish that the proffered position is a specialty occupation requiring a bachelor's degree in 
a specific specialty. 
Absent more specific and persuasive evidence regarding the nature of the proffered position's duties, 
the Petitioner has failed to demonstrate the substantive nature of the work to be performed by the 
Beneficiary. This, therefore, precludes analysis of whether the proffered position satisfies any 
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). In any event, the record does not demonstrate that 
performing the general duties described would require the theoretical and practical application of 
highly specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or 
its equivalent. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation). 
21 We are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf. Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The 
facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner intends to 
employ him falls within [a specialty occupation]."). 
7 
Ill. BENEFICIARY QUALIFICATIONS 
As discussed in this decision, the Petitioner did not submit sufficient evidence regarding the proffered 
position to conclude that it requires a baccalaureate or higher degree in a specific specialty or its 
equivalent. Absent this determination that a baccalaureate or higher degree in a specific specialty, or 
its equivalent, is required to perform the duties of the proffered position, it also cannot be determined 
whether the Beneficiary possesses that degree, or its equivalent. However for thoroughness and to 
inform the Petitioner of this deficiency we conclude that even if the Petitioner had established the 
proffered position is a specialty occupation, the Petitioner has not established that the Beneficiary 
possesses a qualifying degree or its equivalent. 
A. Legal Framework 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for classification 
as an H-1B nonimmigrant worker must possess: 
{A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph {l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate 
or higher degree required by the specialty occupation from an accredited college 
or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
8 
Therefore, if a license is not required and if the beneficiary does not possess the required U.S. degree 
or its foreign degree equivalent, the petitioner must show that the beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty through 
progressively responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program 
on Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials;22 
(4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the [foreign national] has achieved recognition of expertise in the specialty 
occupation as a result of such training and experience .... 
In accordance with 8 C.F.R. § 214.2(h)(4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the [foreign national] lacks .... It must be clearly 
demonstrated that the [foreign national's] training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the specialty 
occupation; that the [foreign national's] experience was gained while working with 
peers, supervisors, or subordinates who have a degree or its equivalent in the specialty 
occupation; and that the [foreign national] has recognition of expertise in the specialty 
22 The Petitioner should note that, in accordance with this provision, we will accept a credential evaluation service's 
evaluation of education only, not training and/or work experience. 
9 
evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation;23 
(ii) Membership in a recognized foreign or United States association or society in 
the specialty occupation; 
(iii) Published material by or about the [foreign national] in professional 
publications, trade journals, books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign 
country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
It is always worth noting that, by its very terms, 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) is a matter strictly 
for USCIS application and determination, and that, also by the clear terms of the rule, experience will 
merit a positive determination only to the extent that the record of proceedings establishes all of the 
qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), including, but not limited to, a type of 
recognition of expertise in the specialty occupation. 
B. Analysis 
As forementioned, the Petitioner stated that the position requires a minimum of a bachelor's degree or 
its equivalent in hospitality management. Accompanying the petition, the Petitioner submitted an 
evaluation report of the work experience from I I of the ~--------;=======\ I I With their RFE response, the Pet-itioner submitted an opinion letter froml I I I of I I University, and letters from two of the Beneficiary's previous 
managers. Upon review, we conclude that even if the proffered position were a specialty occupation, 
the evidence ofrecord would still not be sufficient to establish that the Beneficiary's qualifications do 
not satisfy the applicable regulatory requirements. 
The Beneficiary in this case did not possess: 
• A U.S. baccalaureate or higher degree required by the specialty occupation under 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(1); 
• A foreign degree determined to be similarly equivalent according to 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(2); or 
23 The term "recognized authority" means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. 8 C.F.R. § 214.2(h)(4)(ii). A recognized 
authority's opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such opinions, 
citing specific instances where past opinions have been accepted as authoritative and by whom; (3) how the conclusions 
were reached; and (4) the basis for the conclusions supported by copies or citations of any research material used. Id. 
10 
• An unrestricted State license, registration or certification which authorizes him or her to fully 
practice the specialty occupation found at 8 C.F.R. § 214.2(h)(4)(iii)(C)(3). 
The only remaining possible path to qualify the Beneficiary to perform the services of a specialty 
occupation exists under the education, specialized training, and/or progressively responsible 
experience provision of 8 C.F.R. § 214.2(h)(4)(iii)(C)(4). Two relevant methods exist for equating 
the Beneficiary's education, specialized training, and/or progressively responsible experience to a U.S. 
baccalaureate or higher degree required by the specialty occupation. The first consists of an evaluation 
from a qualified official with the authority to grant college-level credit for training and/or experience, 
while the second is a USCIS determination.24 The relevant portions of the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(D) provide in pertinent part: 
Equivalence to completion of a college degree. For purposes of paragraph 
(h)(4)(iii)(C)(4) of this section, equivalence to completion of a United States 
baccalaureate or higher degree shall mean achievement of a level of knowledge, 
competence, and practice in the specialty occupation that has been determined to be 
equal to that of an individual who has a baccalaureate or higher degree in the specialty 
and shall be determined by one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an individual's 
training and/or work experience; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the [foreign national] has achieved recognition of expertise in the specialty 
occupation as a result of such training and experience .... 
The Petitioner initially offered the academic equivalency evaluation froml I, indicating that 
the Beneficiary's foreign degree was equivalent to a U.S. bachelor's degree in hospitality 
management. However.I I is not an official of an accredited college or university. As 
noted, the regulations specifically mandate that the evaluator possess the authority to grant college­
level credit for training and/or experience in the specialty at an accredited college or university with 
a program for granting such credit. We also note that the evaluation incorrectly states that the 
Beneficiary is from India. In sum, because the evidence of record has not established thatO 
I I is an official who has authority to grant college-level credit in the pertinent specialty at an 
accredited college or university that has a program for granting credit based on an individual's training 
and/or experience, her opinion regarding the U.S. college-level course equivalency of the 
24 See 8 C.F.R. § 214.2(h)(4)(iii)(D)(1) and (5), respectively. The Petitioner does not claim, and the record does not 
demonstrate, that the Beneficiary may qualify under the remaining provisions at 8 C.F.R. § 214.2(h)(4)(iii)(D)(2)-(4). 
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Beneficiary's training and work experience merits no significant weight under the standard at 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(l). 25 
LikewiseJ ldoes not appear to currently be an official who can grant college credit for 
training and/or experience in the specialty. I I University does not appear to offer an 
undergraduate program in hospitality management according to their website.26 Moreover, the 
Petitioner did not provide any evidence that it has a program to grant college-level credit for training 
and/or experience in the specialty of hospitality management. As such, the Petitioner has not 
demonstrated either evaluation is eligible for consideration under 8 C.F.R. § 214.2(h)(4)(iii)(D)(l). 
We now turn to 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), which grants the agency the authority to make our 
own determination on the Beneficiary's qualifications. By its very terms, 8 C.F.R. 
§ 214.2(h)(4)(iii)(D)(5) is a matter strictly for USCIS to decide. This provision inserts a number of 
elements of proof into the analysis, and it requires substantially more than simply equating any three 
years of work experience in a specific field to attainment of one year's worth of U.S. college credit in 
that field or specialty. 
As noted, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) describes the requirements to equate a 
foreign worker' s specialized training and/or work experience to a qualifying degree through the 
following: 
For purposes of determining equivalency to a baccalaureate degree in the specialty, 
three years of specialized training and/or work experience must be demonstrated for 
each year of college-level training the [foreign national] lacks . . . . It must be clearly 
demonstrated that the [foreign national's] training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the specialty 
occupation; that the [foreign national's] experience was gained while working with 
peers, supervisors, or subordinates who have a degree or its equivalent in the specialty 
occupation and that the [foreign national] has recognition of expertise in the specialty 
For the Petitioner to satisfy the equivalency provision, it must meet all of the qualifying conditions 
within the first paragraph at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5), which contains two primary elements. 
The first is attainment of an equivalency to the required degree through a combination of education, 
specialized training, and/or work experience in areas related to the specialty. That equivalency 
contains multiple mandatory sub-elements: 
1. Three years of specialized training and/or work experience must be demonstrated for each year 
of college-level training the foreign national lacks; 
2. The foreign national's training and/or work experience must have included the theoretical and 
practical application of specialized knowledge required by the specialty occupation; and 
25 Where an expert evaluation is in any way questionable, we may discount it or accord it with less weight. Matter of Sea, 
Inc., 19 l&N Dec. 817, 820 (BIA 1988). 
261 I University , Undergraduate Programs, at https:/~ racademic-programs/a-z/undergraduate (last 
visited Jul. 19, 2021). 
12 
3. The foreign national's experience must have been gained while working with peers, 
supervisors, or subordinates who have a degree or its equivalent in the specialty occupation. 
The inability to meet any portion of these sub-element requirements will result in an adverse 
determination. Regardless of whether the Beneficiary's record meets sub-element 1, the Petitioner did 
not offer probative material demonstrating that his background satisfies sub-elements 2 and 3. As 
stated earlier, the proffered position is not a specialty occupation, which alone would preclude 
satisfaction of sub-elements 2 and 3 because there is no "specialty occupation" here. Even if the 
position was a specialty occupation, we would still find that the Petitioner did not describe in detail 
how the Beneficiary's work experience demonstrates the application of specialized knowledge 
required by the position.I l's evaluation does not discuss whether any of these individuals 
the Beneficiary worked with have a degree or equivalent in the specific specialty. Also, neithe0 
I ts letter nor the reference letters from the Beneficiary's previous supervisors discuss either of 
the sub-elements 2 and 3. Specifically, the reference letters from the supervisors provide general job 
duties and do not demonstrate that theoretical and practical application of specialized knowledge 
requiring at least a bachelor's degree. 
In addition! Ian~ I exceeded their authority as recognized by the regulation 
when they determined that the Beneficiary's years of experience equated to a U.S. baccalaureate. As 
mentioned, only USCIS may perform the analysis of whether a beneficiary's "three years of 
specialized training and/or work experience" may be substituted "for each year of college-level 
training the [foreign national] lacks" under 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). This serves as an 
additional element diminishing the evidentiary value of these opinion letters. Therefore, the Petitioner 
has not provided any evidence demonstrating eligibility under 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). 
We conclude that the totality of the evidence regarding the Beneficiary's foreign education and work 
experience does not satisfy any criterion at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (D). Since evidence 
was not presented that the Beneficiary has at least a U.S. bachelor's degree in any specific specialty, 
or its equivalent, the petition could not be approved even if eligibility for the benefit sought had been 
otherwise established. 
V. CONCLUSION 
As set forth above, we conclude that the evidence of record does not establish, more likely than not, 
that the proffered position qualifies for classification as a specialty occupation. Accordingly, the 
appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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