dismissed H-1B Case: Restaurant Management

.
MATTER OF S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 27, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , a restaurant franchise, seeks to temporarily employ the Beneficiary as a "sales 
manager" under the H -1 B nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 10l(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-IB 
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 Petitioner did 
not establish that the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits a briet: asserting that it has established that the proffered position 
is a specialt y occupation . 
Upon de novo review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act , 8 U.S.C. § 1184(i)(l) , defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge , 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
Matter ofS-, LLC 
(1) A baccalaureate or higher degree or its equivalent IS normally the mmimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree'' to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto.fj; 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty'' as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a sales manager and 
described the duties of the position. In a letter of support submitted with the petition, the Petitioner 
provided the following overview of the profiered position: 
A Sales Manager with [the Petitioner] applies a broad range of skills to perform the 
management responsibilities and ensure the growth of [the Petitioner]. Performance 
of job duties typically entails: 
• Plan, direct and coordinate activities involving sales of [the Petitioner's] 
products or services and review operational records and reports to project 
sales and determine profitability (20%). 
• Set goals, analyze internal processes and recommend and implement 
procedural changes to improve sales such as control budgets for equipment 
and supplies and plan the use of materials and human resources (20% ). 
• Expand the client base of [the Petitioner] by monitoring that the Sales remain 
safe, secure, and well-maintained and oversee the maintenance and repair of 
machinery, equipments, and electrical systems to ensure that [the Petitioner] 
meets environmental, health, security standard, and comply with government 
regulations (15%). 
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Matter of S-, LLC 
• Determine sales staff requirements, maintain proper staffing levels through the 
quality selections, manage training for new sales employees, prepare work 
schedules and assign work shifts (1 0% ). 
• Plan and direct activities such as sales promotions, determine goods and 
services to be sold, resolve customer complaints regarding sales and services, 
set prices, discount rates and credit terms based on customer demand ( 15% ). 
• Co-ordinate with distributors and management, determine sales potential and 
inventory requirements of products ( 10% ). 
• Monitor customer preferences to determine the focus of sales efforts, analyze 
sales statistics and advise sales staff on ways to improve sales performance 
(10%). 
The Petitioner stated that "[it] requires, at a minimum, a bachelor's of Business Administration or 
Management or a related field, or the equivalent combination of education, training, and/or 
experience." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
As a preliminary matter, the Petitioner's claim that a bachelor's degree in business administration is 
a sufficient minimum requirement for entry into the proffered position is inadequate to establish that 
the proposed position qualifies as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as business 
administration, without further specification, does not establish the position as a specialty 
occupation. C.f Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm 'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(1) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed, we interpret 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 particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 
F.3d at 147. 
1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
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Matter ofS-, LLC 
Again, the Petitioner in this matter claims that the duties of the proffered position can be performed 
by an individual with only a general-purpose bachelor's degree, i.e., a bachelor's degree in business 
administration. Without more, this assertion alone indicates that the proffered position is not in fact 
a specialty occupation. The Director's decision must therefore be affirmed and the appeal dismissed 
on this basis alone. 
Moreover, it also cannot be found that the proffered position is a specialty occupation because the 
Petitioner has not satisfied any of the supplemental, additional criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). Specifically, the record does not establish that the job duties reqmre an 
educational background, or its equivalent, commensurate with a specialty occupation.2 
A. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. 
To determine whether a particular position normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, as the minimum requirement for entry into the particular position, 
we recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as 
an authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses.3 
On the labor condition application (LCA)4 submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Sales Managers," corresponding 
to the Standard Occupational Classification code 11-2022.5 
2 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
3 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The ''Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
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Matter of S-, LLC 
In pertinent part, the Handbook states that "[m]ost sales managers have a bachelor's degree, 
although some have a master's degree. Educational requirements are less strict for job candidates 
who have significant work experience. Courses in business law, management, economics, 
accounting, finance, mathematics, marketing, and statistics are advantageous." 6 
The Handbook does not indicate that a bachelor's degree in a spec(fic :,pecialty, or the equivalent, is 
normally required for entry into this occupation. That is, while the Handbook states that "[ m ]ost 
sales managers have a bachelor's degree," it does not state whether the bachelor's degree must be in 
a specifzc specialty. In addition, the Handbook states that courses in a wide range of subjects 
including business law, management, and economics are "advantageous." However, the Handbook 
does not state that such courses are required. or that these courses cumulatively lead to a bachelor's 
degree in a specific specialty. 
The Petitioner references the DOL's Occupational Information Network (O*NET) summary report 
for "Sales Managers" listed as SOC code 11-2022.01. Contrary to the Petitioner's assertions, the 
information found in the summary report for the sales managers occupational classification (a copy 
of which the Petitioner submitted) does not establish that the proffered position satisfies this criterion 
either. Specifically, O*NET makes no mention of the specific field of study from which a degree 
must come. In other words, although O*NET indicates that most, but not all, of these positions 
require at least a bachelor's degree (through its Job Zone Four rating), it does not indicate whether 
these bachelor's degrees come from a :,pecifzc :,pecialty.7 Similarly, the occupation's Specific 
Vocational Preparation (SVP) rating is not probative of the proffered position being a specialty 
occupation, as these ratings are meant to indicate only the total number of years of training required 
for a particular position, but do not describe how those years are to be divided among training, 
formal education, and experience, and do not specify the particular type of degree, if any, that a 
position would require.8 
Further, the summary report provides the educational requirements of "respondents," but does not 
account for 100% of the "respondents." The respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in 
the summary report does not indicate that the "education level" for the respondents must be in a 
specific specialty. 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_ll_2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
6 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Sales Managers (2016-17 ed.). 
7 
For more information about Job Zone ratings, see O*NET Online Help Job Zones, 
https:/ /www.onetonline.org/help/online/zones (last visited June 26, 20 17). 
8 
For more information about SVP ratings, see O*NET Online Help Specific Vocational Preparation (SVP), 
https://www.onetonline.org/help/online/svp (last visited June 26, 20 17). 
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.Matter of S-, LLC 
In light of the above, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or. in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.] " 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added) . The first prong 
contemplates the common industry practice , while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion , the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor 's or higher degree in a specific specialty , or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry establish that such firms "routinely 
employ and recruit only degreed individuals. " See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N .Y. 1989) 
(considering these "factors" to inform the commonality of a degree requirement)). 
As previously discussed, the Petitioner has not established 
that its proffered position is one for which 
the Handbook, or another authoritative source , reports a requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. Rather , the Petitioner continues to assert that a degree in a 
specific specialty is not required. Thus, we incorporate by reference the previous discussion on the 
matter. 
Although the Petitioner did not submit any information from a professional associatiOn, the 
Petitioner submitted several letters from individuals in the Petitioner ' s industry on appeal. The 
Petitioner submitted letters from three restaurant owners , stating that "encourages " 
the hiring of sales managers , and claiming that the need for degreed sales managers is apparent. 
Two owners claim to occupy the role of sales manager themselves , and both submit documentation 
demonstrating that they hold foreign degrees in commerce. One owner states that he seeks to hire a 
sales manager with a bachelor's degree in business administration. 
These letters do not establish an industry-wide requirement for a degree in a specific specialty for the 
proffered position. Rather, two of the three letters indicate that the owners themselves, who may or 
may not hold the U.S. equivalent of a bachelor 's degree (as no evaluation oftheir foreign credentials 
is submitted) are performing the duties of the proffered position . At best, these letters indicate a 
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Matter of S-, LLC 
preference in the franchise to hire an individual with a bachelor's degree, but there is no 
indication that such a degree must be in a specific specialty. 
The petitioner also submitted several job announcements posted by other companies to assert that 
"an industry-wide standard to require a bachelor's degree for the position of Sales Manager" exists. 
We do not find these advertisements to be persuasive. 
First, a number of the companies placing the advertisements do not appear to conduct business in the 
same industry as the Petitioner, which may be demonstrated by factors such as the nature or type of 
organization, the particular scope of operations , as well as the level of revenue and staffing (to list 
just a few elements that may be considered). It is not sufficient for the Petitioner to claim that an 
organization is similar and in the same industry without corroborating evidence. The Petitioner must 
support its assertion with relevant, probative , and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). 
Here, the Petitioner submits advertisements from compames such as a "leading 
provider of energy savings to utility clients," and , which "operates a 
portfolio of mobile home residential communities ." The Petitioner also submits advertisements from 
a luxury chain hotel, a golf course, a steakhouse chain, a packaged bakery goods producer , a 
producer of natural /alternative food and nutritional products, and a restaurant point-of-sale software 
company. None of the companies appear similar to the Petitioner, a fast-food restaurant with 10 
employees. 
Nor is it clear that these positions are "parallel" to the proffered position. For example , many of 
them require work experience. However, the Petitioner designated the proffered position as an 
entry-level position , which does not require prior work experience . 
Finally, most of the postings state a general requirement for a bachelor ' s degree, either without 
specification or in a variety of disparate fields , or simply that a general bachelor's degree is 
"preferred." There is no evidence demonstrating 
that these companies require a bachelor's degree in 
a specific specialty. 
Since there must be a close correlation between the required "body of highly specialized knowledge " 
and the position , a minimum entry requirement of a degree in two disparate fields, such as 
philosophy and engineering, would not meet the statutory requirement that the degree be "in the 
specific specialt y (or its equivalent)," unless the Petitioner establishes how each field is directly 
related to the duties and responsibilities of the particular position such that the required "body of 
highly specialized knowledge" is essentially an amalgamation of these different specialties. Section 
214(i)( 1 )(B) of the Act (emphasis added). If a sales manager can hold a wide variety of degrees in 
disparate fields then this indicates that the proffered position does not require a degree in a specific 
Matter of S-, LLC 
specialty and, therefore, the requirement of a bachelor's or higher degree in a specific specialty is not 
common to the industry in parallel positions among similar organizations. 9 
The Petitioner has not, therefore, satisfied the criterion of the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In this matter, the evidence of record does not distinguish the proffered position as unique from or 
more complex than other sales manager positions that can be performed by persons without at least a 
bachelor's degree in a specific specialty, or its equivalent. 
The record does not credibly demonstrate relative complexity or uniqueness as aspects of the proffered 
position. Specifically, it is unclear how the proffered position, as described, necessitates the theoretical 
and practical application of a body of highly specialized knowledge such that a person who has attained 
a bachelor's or higher degree in a specific specialty or its equivalent is required to perform them. 
Rather, we find, that, as reflected in this decision's earlier quotation of duty descriptions from the 
record of proceedings, the evidence of record does not distinguish the proffered position from other 
positions falling within the "Sales Managers" 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. 
To begin with, the record does not credibly demonstrate exactly what the Beneficiary will do on a 
day-to-day basis such that complexity or uniqueness can even be determined. That is, while the 
Petitioner claims that the position involves focusing on duties such as planning and coordinating 
9 
Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated 
what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The 
Practice of Social Research 186-228 ( 1995). Moreover, given that there is no indication that the advertisements were 
randomly selected, the validity of any such inferences could not be accurately determined even if the sampling unit were 
sufficiently large. See id. at 195-196 (explaining that "[r]andom selection is the key to [the] process [of probability 
sampling]" and that ''random selection offers access to the body of probability theory, which provides the basis for 
estimates of population parameters and estimates of error"). 
The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
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Matter of S-, LLC 
activities involving the sale of the Petitioner's products, maintaining proper staffing levels, and 
resolving customer complaints, the Petitioner does not demonstrate how the Beneficiary's proposed 
duties require the theoretical and practical application of a body of highly specialized knowledge 
such that a bachelor's or higher degree in a specific specialty, or its equivalent, is required to 
perform them. 
For instance, the Petitioner stated that the proffered position requires a bachelor's degree in business 
administration, management, or a related field. As previously discussed, a general-purpose 
bachelor's degree, such as a degree in business administration, without more, will not justify a 
finding that a particular position qualifies for classification as a specialty occupation. 10 
This is again further evidenced by the LCA, which indicates that, relative to other positions located 
within the "Sales Managers" occupational category, the Beneficiary would perform only routine 
tasks that require limited, if any, exercise of judgment; that his work will be monitored and reviewed 
for accuracy; and he will receive specific instructions on required tasks and expected results. 
Without further evidence, the evidence does not demonstrate that the proffered position is so 
complex or unique that it would likely be classified at a higher-level, such as a Level III 
(experienced) or Level IV (fully competent) position. 11 For example, a Level IV (fully competent) 
position is designated by DOL for employees who "use advanced skills and diversified knowledge to 
solve unusual and complex problems." The evidence of record does not establish that this position is 
significantly different from other positions in the occupational category such that it refutes the 
Handbook's information that a bachelor's degree in a specific specialty, or its equivalent, is not 
required for the proffered position. 
On appeal, the Petitioner submitted an expert opmwn letter authored by 
Professor/Principal Credential Evaluator, opined that the position 
"is specialized in nature, requiring the ability to apply the knowledge associated with the attainment 
of a bachelor's level degree in business law, management, economics, accounting, finance, 
mathematics, marketing and statistics or a closely related field." explored the duties of 
10 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. 
In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a 
specific specialty that is directly related to the proffered position. See Royal Siam Corp., 484 F.3d at 147. 
11 The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a position 
would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, 
however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that 
higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty or its 
equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a determination 
of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
9 
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Matter of S-, LLC 
the proffered position as presented by the Petitioner and reviewed the documentation regarding the 
Beneficiary's education and work experience, and indicated their impottance and how they relate to 
the duties of the proffered position. concluded by stating that the roles of the proffered 
position "are complex in nature" and thus require the attainment of a "bachelor's level degree in in 
business law, management , economics, accounting , finance, mathematics , marketing and statistics or 
a closely related field combined with progressive hands on professional work experience and 
specialized training. " 
However, evaluation does not discuss the Petitioner's designation of this position as 
requiring only a Level I wage. As noted above , a Level I wage rate denotes an entry-level position, 
where the Beneficiary would perform only routine tasks that require limited, if any, exercise of 
judgment; close supervision of work, monitored and reviewed for accuracy; and the receipt of 
specific instructions on required tasks and expected results. This is contrary to findings 
and opinion of the proffered position's advanced level within the Petitioner's organization. 
For these reasons , we do not find the opinion sufficient to support a finding that the proffered 
position is a specialty occupation. We may, in our discretion, use opinion statements submitted by 
the Petitioner as advisory. Matter of Caron !nt'l . Inc., 19 I&N Dec. 791, 795 (Comm 'r 1988). 
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. !d. In this instance, the opinion 
of has little probative value in establishing the proffered position as a specialty 
occupation. 
Finally, although the Petitioner submits an affidavit from the Beneficiary , attesting to his claimed 
duties and the claimed complexity of those tasks, this document is unpersuasive based on the 
numerous deficiencies surrounding the position as discussed above. While the Beneficiary may be 
qualified to perform the duties of the position , this self-serving statement will not satisfy the burden 
of proof in this matter. Further, the test to establish a position as a specialty occupation is not the 
education or experience of a proposed beneficiary, but whether the position itself requires at least a 
bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner did not sufficiently develop relative complexity or uniqueness as an aspect of the 
duties of the position, and it did not identify any tasks that are so complex or unique that only a 
specifically degreed individual could perform them. Thus, it cannot be concluded that the Petitioner 
has satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent , for the position. The 
record must establish that a petitioner's stated degree requirement is not a matter of preference for 
high-caliber candidates but is necessitated instead by performance requirements of the position. See 
Defensor , 201 F.3d at 387-88. If we were limited solely to reviewing the Petitioner ' s claimed 
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Matter of S-, LLC 
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 Petitioner created a token degree 
requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
Although we acknowledge the submission of a June 2015 job advertisement posted by the Petitioner 
for the position of sales manager, which states that a bachelor's degree in business administration, 
management, or a related field, or the equivalent combination of education, training, and experience, 
is required, the Petitioner indicated that there was no response to this advertisement. Moreover, the 
Petitioner makes no assertion and provides no evidence to demonstrate that it has previously hired 
specialty-degreed individuals for the proffered position. 
The Petitioner submitted a declaration from its owner, stating that he "does not have time to perform 
Sales Manager duties" for his 
store. He claims that this lack of time forced him to hire a talented 
and qualified manager with a bachelor's degree in business administration or management, and 
further claims that the Beneficiary satisfied these requirements. 
We find this declaration unpersuasive, particularly since the owner indicates that he himself would 
perform the duties of the proffered position if he "had the time." There is no indication that the 
declarant holds a bachelor's degree in a specific specialty, such that he would otherwise be qualified 
to perform the sales manager tasks if time permitted. Moreover, the preference to hire the 
Beneficiary based on his academic achievements does not equate to a standard hiring practice. 
Finally, we incorporate by reference our discussion of the letters submitted by other 
restaurant owners in support of the assertion that the franchise routinely requires a bachelor's degree 
in a specific specialty. As discussed previously, these letters are insufficient to demonstrate a 
standard hiring practice implemented by the Petitioner and related restaurant franchises. 
The Petitioner has not provided sufficient evidence to establish that it normally requires at least a 
bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Therefore, it 
has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
Here, the Petitioner continually cites to its specialized and complex business franchise, and claims 
that the duties of the proffered position are precise and complex; however, the duties and 
requirements of the position as described in the record of proceedings do not indicate that this 
II 
Matter of S-, LLC 
particular position proffered by the Petitioner is one for which a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry. 
We also incorporate our earlier discussion and analysis regarding the designation of the position as a 
Level I position. 
The Petitioner has not demonstrated in the record that its proffered position is one with duties 
sufficiently specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
The Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, LLC, ID# 430568 (AAO June 27, 2017) 
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