dismissed H-1B Case: Restaurant Management

(b)(6)
U.S. Dcpartmcut of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., M.S 2090 
Washi.ngton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAY 2 6 2015 OFFICE: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H) (i)(b) of the 
Immigration and Nation ality Act, 8 U.S.C. § 1101(a)(1 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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 anno unce 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 See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
n Rosenberg 
, Administ rative Appeals Office 
www .uscis.gov 
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DISCUSSION: The service center director ("the director") denied the nonimmigrant visa petition, 
and the matter is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
17 -employee "Restaurant" established in In order to employ the beneficiary in a position 
in what it designates as a "Restaurant General Manager" position, the petitioner seeks to classify 
him as a nonimmigrant worker in a specialty occupation pursuant to section 101( a)(15 )(H)(i)(b) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. § 11 01(a)(15 )(H)(i)(b). 
The director denied the petition determining that the evidence of record did not establish that the 
duties of the proffered position comprise the duties of a specialty occupation. 
The record of proceeding before this office includes the following: (1) the Form I -129 and 
supporting documentation; (2) the director's request for evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the notice of decision; and (5) the Notice of Appeal or Motion (Form 
I-290B), counsel's brief, and additional documentation. 
For the reasons that will be discussed below, we agree with the director that the petitioner has not 
established eligibility for the benefit sought. The appeal will be dismissed, and the petition will 
be denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
In a letter, dated May 10, 2014, the petitioner stated that it "is one of the top gourmet experiences 
in the Washington metro area" as "an upscale gourmet Indian Restaurant that specializes in 
preparation of authentic Indian food." The petitioner noted that the beneficiary as its restaurant 
manager "will have complete charge of [the restaurant]," "will coordinate the daily activities of 
the restaurant including oversight of the kitchen, dining room and special events," and "will be 
responsible for the management and profitability of [the restaurant]." The petitioner indicated 
that the beneficiary's duties will include the following: 
• Oversight of the budgetary management of $332 ,534 and $300,465 in salaries; 
• Develop, implement and manage the Restaurant's budget as well as analyze, 
forecast, monitor and control the labor and food costs through various 
methods to meet/exceed the budget objectives; 
• Evaluate financial statements and balance cash/charge receipts against the 
record of sales; 
• Train and direct 15 -17 kitchen and wait staff in the art of Indian Cuisine; 
• Stay abreast of new market trends and the industry changes and amend the 
restaurant's policy and operations to maintain the petitioner's standards; 
• Provide input into the pricing of menu items as they relate to the cost of 
ingredients used to assess pricing in the U.S. market; 
• Review menu items in detail and analyze recipes to determine the food, labor 
and overhead cost expended in order to price menu items; 
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• Will introduce new recipes and modify the existing ones; and, 
• Will interview, hire, train, schedule, and fire employees; 
[Bullet points added and paraphrased for clarity.] 
The petitioner asserted that the complexity of the proffered position's job duties are associated 
with the attainment of at least a bachelor's degree or the equivalent and "the level of 
responsibility, authority and remuneration involved in the position is associated with professional 
standing." The petitioner noted that the beneficiary has over 20 years of experience in the fine 
dining restaurant business and that his experience has been evaluated to be the equivalent of a 
Bachelor of Culinary Design degree from an accredited university in the United States. 
The petitioner identified the beneficiary's proffered wage on the Form I-129 as $48,000 annually. 
The petitioner also submitted the required Labor Condition Application (LCA) in support of the 
instant H-1B petition, de signating the proffered position as the occupational classification "Food 
Service Managers" - SOC (ONET/OES) code 11-9051 at a Level I (entry) wage. The LCA was 
certified on May 28, 2014 for a validity period beginning June 16, 2014 to June 15, 2017 at a 
$48,000 annual salary in the Washington, DC metropolitan area.1 
The petitioner also included news releases regarding the restaurant, evidence of the beneficiary's 
prior H-1B and Immigrant Petition (Form I-140) approvals, and an evaluation of the 
beneficiary's work experience. 
Upon review of the initial record, the director requested additional information to establish the 
proffered position as a specialty occupation. The director outlined the type of evidence that 
could be submitted. 
In an undated letter in response to the director's RFE, the petitioner stated that the restaurant 
manager position is the senior level position in [the] restaurant. The petitioner listed the 
restaurant manager's responsibilities and allocated a percentage of time associated with each of 
the responsibilities as follows: 
1. Hire, train, supervise and organize all front of the house personnel (5%) 
2. Develop and create cocktail menus and wine lists that complimenting [sic] 
the food served. Also develop wine programs and pairing with food (5%) 
3. Develop in conjunction with the chef, the menus for the restaurant, 
considering factors such as product availability, service cost, marketing 
conditions and number to be served (12%) 
4. Ensure the correct preparation and presentation at a consistent level for all 
food items served (5%) 
1 The petitioner attested on the LCA that the prevailing wage for a Level I food service manager in the 
Washington, DC metropolitan area based on DOL's Office of Foreign Labor Certification Online Data 
Center is $40,394. 
---- -- - --- - - --- - -- -- -- --- - - - - - -- - -- -- --- --------- - ---
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5. Assign prices for the food and beverage items that result in net profit of the 
food and beverage cost areas and participate in decision making process 
regarding printing, layout, posting and distribution of menus (10%) 
6. Prepare and post employee schedules to reflect operating forecast while 
keeping within budgeted figures (3%) 
7. Coordinate with the wine and spirits vendors, food suppliers and other 
purveyors, to meet quality standards, keeping costs down and lead the 
responsibilities of the restaurant operations (3%) 
8. Serve as a liaison between the guests, the serving staff and kitchen staff, 
communicating special needs and supervising changes in standard practice 
(3%) 
9. Complete and provide evaluations for all front of the house staff and make 
recommendations for back of the house staff for salary increases based on 
performance (10%) 
10. Hold daily meetings/briefings with the front of the bouse staff as well as 
attend and participate in all required meetings (3%) 
11. Set up control systems to curtail pilferage, and assure quality and portion 
consistency in the bar and kitchen (5%) 
12. Ensure restaurant sanitation meets the standards as set forth by [the 
petitioner], and government regulations are in compliances [sic] well as the 
cleanliness of all areas including the dining room and kitchen (3%) 
13. Train dining room employees in handling queries about the spices and the 
culinary specialties of different regions in India (3%) 
14. Be responsible for the daily, monthly sales reports and evaluate the business 
trends and forecast revenues quarterly (10%) 
15. Monitor and review the comments from the customers and share them with 
staff on daily basis to ensure the best dining experience is provided to the 
guest (10%) and 
16. Communicate with the President on a regular basis the activities and results 
of the dining area and the kitchen (10%) 
The petitioner stated that it is looking for an individual with enough work experience in the 
business and that the beneficiary's 20 years of work experience is equivalent to a bachelor's 
degree. 
The petitioner also submitted a letter, dated July 1, 2014, prepared by 
for the National Restaurant Association. 
indicates that the National Restaurant Association believes that "some employers require that 
restaurant managers hold a bachelor's degree or its equivalent." explains that a 
restaurant manager at a fine dining restaurant, like the petitioner, requires not only basic 
hospitality and managerial skills critical to a restaurant management position, but also requires 
knowledge of human resources, business, finance, and government regulations. 
opines that "[s]ince such skills may be obtained at the undergraduate level, [the petitioner's 
president] is justified in his request that his restaurant manager hold a bachelor's degree." 
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The record in response to the director's RFE also included: copies of seven job advertisements 
for restaurant manager or restaurant general manager for positions at various types of businesses 
in the food industry; reviews and general information about the petitioner's restaurant; and the 
beneficiary's corrected 2013 Internal Revenue Service (IRS) Form W-2, Wage and Tax 
Statement, and earning statements for the first seven months of 2014. 
Upon review of the record, the director denied the petition, determining that the record did not 
include sufficient evidence to establish that the proffered position is a specialty occupation. 
On appeal, the petitioner asserts that the director did not give sufficient probative weig ht to the 
opinion letter prepared by or the advertisements submitted which it claims 
establish that a degree in culinary arts or a related specialty is normally required for parallel 
positions in the industry. The petitioner also contends that the duties of the position are complex 
and can only be performed by an individual with a bachelor's degree in the specialty. The 
petitioner also reports that the beneficiary was previously granted H-1B status for a similar 
restaurant manager position at a restaurant that is comparable to the petitioner and avers the 
instant petition is no different than the petitions previously approved. The petitioner claims that 
a position is considered to require a bachelor's degree in a specific specialty if it requires both a 
general bachelor's degree and work experience in a specific specialty and cites Tapis Jnt'l v. INS, 
94 F. Supp. 2d 172 (D. Mass. 2000), in support of the claim. 
The petitioner re-submits the previously provided documentation and also submits an excerpt 
from the Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), several 
additional job postings, and overviews of the curricula and objectives of several organizations 
and universities that have degree programs in the culinary arts. 
II. LAW 
The issue here is whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a specialty occupation position. 
To meet its burden of proof on this issue, 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 Act, 8 U.S. C. § 11 84(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. P.R. § 214. 2(h)(4)(ii) states, in pertinent part, the following: 
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Specialty occupation means an occupation which [(1)] requires 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, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its 
equivalent, as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214 .2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed 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 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214. 2(h)(4)(iii)(A) must logically be read together 
with section 214 (i)(1) of the Act and 8 C.F.R. § 214.2 (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 as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1 988) (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. 561 (1989 ); Matter of W-F-, 21 I&N Dec. 50 3 (BIA 1996). 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 
sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise 
interpret this section as stating the necessary and sufficient conditions for meeting the definition 
of specialty occupation would result in particular positions meeting a condition under 8 C.F.R . 
§ 214.2( h)(4)(iii)( A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
supra. To avoid this result, 8 C.F.R. § 214.2 (h)(4)(iii)( A) must therefore be read as stating 
additional requirements that a position must meet, supplementing the statutory and regulatory 
definitions of specialty occupation. 
As such and consonant with section 214 (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. § 214 .2(h)(4)(ii i)(A) to mean not just any baccalaureate 
or higher degree, but one in a specific specialty that is directly related to the proffered position. 
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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"). Applying this standard, USCIS regularly approves H-lB petitions for 
qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such occupations. These professions, for which 
petitioners have regularly been able to establish a minimum entry requirement in the United 
States of a baccalaureate or higher degree in a specific specialty or its equivalent directly related 
to the duties and responsibilities of the particular position, fairly represent the types of specialty 
occupations that Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, 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 
occupation. See generally Defensor v. Meissner, 201 F. 3d 38 4. 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 specific specialty as the minimum for 
entry into the occupation, as required by the Act. 
III. MATERIAL FINDINGS 
A. The LCA Does Not Correspond to the Petition 
The regulations require that before filing a Form I-129 petition on behalf of an H-lB worker, a 
petitioner obtain a certified LCA from the DOL in the occupational specialty in which the H-lB 
worker will be employed. See 8 C. P.R. §§ 214. 2(h)(4)(i)(B) and 214.2 (h)(4) (iii)(B)(l). The 
instructions that accompany the Form I-12 9 also specify that an H-lB petition must be filed with 
evidence that an LCA has been certified by DOL. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, 
DOL regulations note that the U.S. 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 I-129 actually supports that petition. See 20 C. P.R. 
§ 655. 705(b ) , which states, in pertinent part (emphasis added): 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-1 29) with 
the DOL certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the [LCA] is a specialty occupation or whether the 
individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements of H- lB visa 
classification. 
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The regulation at 20 C. P.R. § 655.7 05(b) therefore requires that USCIS ensure that an LCA 
actually supports the H- 1B petition filed on behalf of the beneficiary. In the instant matter, the 
LCA provided in support of the instant petition lists a Level I prevailing wage level for Food 
Service Managers in the Washington DC metro area.2 The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance. "3 A Level I wage rate is described as 
follows: 
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. 
See 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. 
Thus, in designating the proffered position at a Level I wage, the petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage 
levels, this wage rate indicates that the beneficiary is only required to have a basic understanding 
of the occupation and carries expectations that the beneficiary perform routine tasks that require 
limited, if any, exercise of judgment; that he would be closely supervised; that his work would be 
closely monitored and reviewed for accuracy; and that he would receive specific instructions on 
required tasks and expected results. Based upon the petitioner's designation of the proffered 
2 Wage levels should be determined only after selecting the most relevant O*NET code classification. 
Then, a prevailing wage determination is made by selecting one of four wage levels for an occupation 
based on a comparison of the employer's job requireme nts to the occupational requirements, including 
tasks, knowledge, skills, and specific vocational preparation (education, training and experience) 
generally required for acceptable performance in that occupation. 
3 Prevailing wage determi nations start with a Level I (entry) and progress to a wage that is commensurate 
with that of a Level II (qualified), Level III (experienced), or Level IV (fully competent) after considering 
the job requirem ents, experience, education, special skills/other requirements and supervisory duties. 
Factors to be consi dered when determi ning the prevailing wage level fm; a position include the 
comp lexity of the job duties, the level of judgm ent, the amount and level of supervision, and the level of 
understanding required to perform the job duties. DOL emphasizes that these guidelines should not be 
imple mented in a mechanical fashion and that the wage level should be commensurate with the 
complexity of the tasks, independent judgment required, and amount of close supervision received. 
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position as a Level I (entry) position, it does not appear that the beneficiary will be expected to 
serve in a senior or leadership role. 
That is, the petitioner's attestation on the LCA, which is certified for an entry-level position, is at 
odds with the petitioner's initial claim that the beneficiary "will have complete charge of [the 
restaurant]," "will coordinate the daily activities of the restaurant including oversight of the 
kitchen, dining room and special events," and "will be responsible for the ... profitability of [the 
restaurant]," as well as the petitioner's response to the RFE that the restaurant manager position 
is "the senior level position" in the restaurant. Referencing the DOL, Employment and Training 
Administration's Prevailing Wage Determination Policy Guidance, for example, a position 
requiring this level of responsibility would appear to indicate at least a Level III wage level 
("experienced") or more likely a Level IV ("fully competent") wage level. 4 See 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 _1 1_ 2009 .pdf. 
Given that the LCA submitted in support of the petition is for a Level I (entry) wage on the LCA 
while the petitioner claims that the proffered position requires a much higher level of 
responsibility, it must be concluded that the LCA does not correspond to the petition.5 In other 
words, even if it were de termined that the proffered position requires at least a bachelor's degree 
in a specific specialty or its equivalent, such that it would qualify as a specialty occupation, the 
petition could still not be approved due to the petitioner's failure to submit an LCA that 
corresponds to that Level III or IV position. 
B. Tapis Int'l v. INS 
On appeal, the petitioner asserts that a "proffered position is considered to require a Bachelor's 
degree in a specific specialty if it requires both a general Bachelor's degree and work experience 
in a specific specialty" and cites to Tapis Int'l v. INS, 94 F. Supp. 2d at 17 2 in support of the 
assertion. 
We first specifically note that in Tapis Int'l v. INS, the U.S. district court found that while the 
former Immigration and Naturalization Service (INS) was reasonable in requiring a bachelor's 
degree in a specific field, it abused its discretion by ignoring the portion of the regulations that 
4 We also note the petitioner's repeated claims regarding the beneficiary's work experience, and how that 
breadth of experience is directly relevant to the position. These claims are not consistent with a job offer 
for a "research fellow, a "worker in training," or an individual participating in an "internship" which, 
according to the DOL wage-level guidance, are "indicators that a Level I wage should be considered ." 
5 Notably, the petitioner would have been required to offer a significantly higher wage to the ben eficiary 
in order to employ him at a Level II (qualified), a Level III (experienced), or a Level IV (fully competent ) 
level. U.S. Dep't of Labor, Foreign Labor Certification Data Center, Online Wage Library, FLC Quick 
Search, "Food Service Managers," http://www .flcdatacenter. com/OesQuickR esults. aspx?code= 11-
905l&area=47894& year=l4&source=l (last visited May 20, 2015). 
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allows for the equivalent of a specialized baccalaureate degree. According to the U.S. district 
court, INS's interpretation was not reasonable because then H-lB visas would only be available 
in fields where a specific degree was offered, ignoring the statutory definition allowing for 
"various combinations of academic and experience based training." Tapis Int'l v. INS, 94 F. 
Supp. 2d at 176. The court elaborated that "[i]n fields where no specifically tailored 
baccalaureate program exists, the only possible way to achieve something equivalent is by 
studying a related field (or fields) and then obtaining specialized experience ." I d. at 177. 
In this matter, it appears that baccalaureate programs in culinary arts and in restaurant and 
hospitality management or institutional food service management do exist. The petitioner on 
appeal provides the curricula of several universities and other institutions that offer bachelor's 
degree in such programs. Moreover, the DOL's Handbook's chapter on food service managers 
also references such programs. 6 Thus, the availability of such programs negates the necessity of 
this petitioner or any other to establish the proffered position of food service manager as a 
specialty occupation by the requirement of a general bachelor's degree and also the attainment of 
specialized experience in the particular specialty of restaurant and hospitality management. 
To confirm, if the requirements to perform the duties and job responsibilities of a proffered 
position are a combination of a general bachelor's degree and experience such that the standards 
at both section 214( i)(l) (A) and (B) of the Act have been satisfied, then the proffered position 
may qualify as a specialty occupation. We do not find, however, that the U.S. district court is 
stating that any position can qualify as a specialty occupation based solely on the claimed 
requirements of a petitioner. 
Instead, USCIS must examine the actual employment requirements, and, on the basis of that 
examination, determine whether the position qualifies as a specialty occupation. See generally 
Defensor v. Meissner, 201 F. 3d 38 4. In this pursuit, the critical element is not the title of the 
position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of 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 
a specific specialty as the minimum for entry into the occupation as required by the Act. In this 
matter, as will be discussed in detail below, the petitioner has not satisfied these basic criteria. 
In addition, we note that the district court judge does not state in Tapis Int'l v. INS that, simply 
because there is no specialty degree requirement for entry into a particular position in a given 
occupational category, USCIS must recognize such a position as a specialty occupation if the 
beneficiary has the equivalent of a bachelor's degree in that field. In other words, we do not find 
that Tapis Int'l v. INS stands for either (1) that a specialty occupation is determined by the 
6 Our references to the Handbook, are references to the 2014-2015 edition of the Handbook, which may 
be accessed at the Internet site http://www.bls.g ov/OCO/. The subchapter on the education of food 
service managers is found at U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook 
Handbook, 2014-2015 ed., "Food Service Managers," http://www.bls.gov/ooh/manageme nt/food-service­
managers .htm#tab-4 (last visited May 20, 2015). 
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qualifications of the beneficiary being petitioned to perform it; or (2) that a position may qualify 
as a specialty occupation even when there is no specialty degree requirement, or its equivalent, 
for entry into a particular position in a given occupational category. 
First, we cannot determine if a particular job is a specialty occupation based on the qualifications 
of the beneficiary. A beneficiary's credentials to perform a particular job are relevant only when 
the job is first found to qualify as a specialty occupation. USCIS is required to follow 
long-standing legal standards and determine first, whether the proffered position qualifies as a 
specialty occupation, and second, whether an alien beneficiary was qualified for the position at 
the time the nonimmigrant visa petition was filed. Cf. Matter of Michael Hertz Assoc., 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]. "). 
Second, in promulgating the H -1B regulations, the former INS made clear that the definition of 
the term "specialty occupation" could not be expanded "to include those occupations which did 
not require a bachelor's degree in the specific specialty." 56 Fed. Reg. 61111, 61 11 2 (Dec. 2, 
1991). More specifically, in responding to comments that "the definition of specialty occupation 
was too severe and would exclude certain occupations from classification as specialty 
occupations," the former INS stated that "[t]he definition of specialty occupation contained in the 
statute contains this requirement [for a bachelor's degree in the specific specialty or its 
equivalent]" and, therefore, "may not be amended in the final rule." !d. 
In any event, the petitioner in this matter has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in Tapis Int'l v. INS. We also observe that, in contrast 
to the broad precedential authority of the case law of a United States circuit court, we are not 
bound to follow the published decision of a Unitep States district court in matters arising even 
within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the 
reasoning underlying a district judge's decision will be given due consideration when it is 
properly before this office, the analysis does not have to be followed as a matter of law. !d. at 
719 . 
IV. SPECIALTY OCCUPATON 
The primary issue in this matter is whether the petitioner has established the proffered position is 
a specialty occupation. To ascertain the intent of a petitioner, USCIS must look to the Form 
I-129 and the documents filed in support of the petition. It is only in this manner that the agency 
can determine the exact position offered, the location of employment, the proffered wage, et 
cetera. Pursuant to 8 C.P. R. § 214.2( h)(9)(i), the director has the responsibility to consider all of 
the evidence submitted by a petitioner and such other evidence that he or she may independently 
require to assist his or her adjudication. Further, the regulation at 8 C. P.R. § 214.2(h)(4)(iv) 
provides that "[a]n H-1B petition involving a specialty occupation shall be accompanied by 
[ d]ocumentation ... or any other required evidence sufficient to establish ... that the services 
the beneficiary is to perform are in a specialty occupation." 
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Turning to the criteria at 8 C. P.R. § 214.2( h)(4)(iii)(A), to determine whether the employment 
described above qualifies as a specialty occupation, we first examine the criterion at 8 C. P.R. 
§ 214.2(h)(4)(iii)(A )(l ), which requires that a baccalaureate or higher degree in a specific 
specialty or its equivalent is the normal minimum requirement for entry into the particular 
position. We recognize the DOL's Handbook as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 
In this matter, the petitioner identifies the proffered position as a restaurant manager and 
designates the occupational classification on the LCA as a food service manager. Upon review 
of the Handbook's description of a food service manager, we find that the petitioner's description 
of duties closely tracks the description of this occupation as set out in the Handbook. In the 
chapter on food service managers, the Handbook reports the following regarding the education 
and training of a food service manager: 
Most applicants qualify with a high school diploma and long-term work 
experience in the food service industry as a cook, waiter or waitress, or counter 
attendant. However, some receive training at a community college, technical or 
vocational school, culinary school, or at a 4-year college. 
Education 
Although a bachelor's degree is not required, some postsecondary education is 
increasingly preferred for many manager positions, especially at upscale 
restaurants and hotels. Some food service companies and national or regional 
restaurant chains recruit management trainees from college hospitality or food 
service management programs, which require internships and real-life experience 
to graduate. 
Many colleges and universities offer bachelor's degree programs in restaurant and 
hospitality management or institutional food service management. In addition, 
numerous community and junior colleges, technical institutes, and other 
institutions offer programs in the field leading to an associate's degree. Some 
culinary schools offer programs in restaurant management with courses designed 
for those who want to start and run their own restaurant. 
Regardless of length, nearly all programs provide instruction in nutrition, 
sanitation, and food planning and preparation, as well as courses in accounting, 
business law, and management. Some programs combine classroom and practical 
study with internships 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-20 15 
ed., "Food Service Managers," http://www .bls.gov/ooh/management/food-se rvice­
managers.htm#tab-4 (last visited May 20, 2015). 
(b)(6)
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Page 13 
Here; the Handbook indicates several paths are available to individuals entering into the 
occupation of a food service manager. Additionally, the Handbook reports that "[m]ost 
applicants qualify with a high school diploma and long-term work experience in the food service 
industry as a cook, waiter or waitress, or counter attendant." The Handbook specifically notes 
that bachelor's degrees are not required to perform the duties of this occupation and that while 
"some" postsecondary education is "preferred" by upscale restaurants and hotels, numerous 
colleges, technical institutes, and institutions offer programs leading to an associate's degree. 7 
Upon review of the Handbook's report on this occupation, the Handbook does not support a 
claim that food service managers are required to possess a bachelor's degree, let alone a 
bachelor's degree in a specific specialty or its equivalent. 
As the Handbook does not support the proposition that the proffered position is one that 
normally requires a minimum of a bachelor's degree in a specific specialty, or the equivalent, to 
satisfy this first alternative criterion at 8 C.P.R. § 214 .2(h)( 4)(iii)(A), it is incumbent upon the 
petitioner to provide persuasive evidence that the proffered position otherwise qualifies as a 
specialty occupation under this criterion, notwithstanding the absence of Handbook support on 
the issue. The petitioner has not provided such evidence. 
As the evidence in the record of proceeding does not establish that a baccalaureate or higher 
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 at 8 C.P.R. § 214. 2(h)(4)(iii)( A)(J). 
Next, we find that the petitioner has not satisfied 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 
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 individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 11 65 
(D.Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 71 2 F. Supp. 1095, 11 02 (S.D.N.Y. 1989)). 
As previously discussed, the petitioner has not established that its proffered position is one for 
7 The petitioner's statements regarding its upscale nature are acknowledged. However, the Handbook 
indicates only that "some" upscale restaurants "prefer" "some postsecondary education." First, that 
"some" upscale restaurants prefer a given educational credential does not mean that most, or even a 
majority, of upscale restaurants share the preference. Second, a hiring "preferen ce" does not necessarily 
equate to a minimum hiring requirement. Third, the Handbook does not indicate that the term "some 
postsecondary education" is necessarily synonymous with a bachelor's degree in a specific specialty, or 
the equivalent. As such, the Handbook's statements with regard to "upscale restaurants" do not establish 
eligibility under this criterion. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
which the Handbook, or other authoritative source, reports a standard, industry-wide requirement 
of at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by 
reference the previous discussion on the matter. 
On the Form I-129, the petitioner stated that 1t IS a restaurant established in with 
17 employees. The petitioner stated its gross annual income as $1,119 ,564 and its net annual 
income as $1 49,7 21. In response to the RFE, the petitioner provided printouts of seven online job 
announcements and on appeal provided an additional five job advertisements. However, this 
documentation does not establish that the proffered position qualifies as specialty occupation. As a 
preliminary matter, we note that the petitioner did not provide any independent evidence of how 
representative these job advertisements are of the particular advertising employers' recruiting 
history for the type of jobs advertised. Further, as they are only solicitations for hire, they are 
not evidence of the employers' actual hiring practices. 
For the petitioner to establish that an organization is similar, it must demonstrate that it shares 
the same general characteristics with the advertising organization. Without such evidence, 
documentation submitted by a petitioner is generally outside the scope of consideration for this 
criterion, which encompasses only organizations that are similar to the petitioner. When 
determining whether the petitioner and the advertising organization share the same general 
characteristics, such factors may include information regarding the nature or type of 
organization, and, when pertinent, 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 providing 
a legitimate basis for such an assertion. 
Upon review, we f!nd that the advertising companies range from well-known chain restaurants to 
smaller independent restaurants. Although all of the advertisers appear to be in the food service 
industry, none of the advertisements or supplementary material provided on appeal includes 
sufficient information regarding the advertising organizations to establish that the advertising 
organizations are "similar" to the petitioner. For example, the advertisements do not provide the 
advertisers' revenue or level of staffing supported by documentary evidence. Moreover, contrary 
to the purpose for which the advertisements were submitted, the postings do not establish that at 
least a bachelor's degree in a specific specialty, or its equivalent, is required for the positions. 
Again, 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 degree (such as a "business" 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 139, 147 (1st Cir. 2007) .8 Thus, advertisements that request a 
8 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not 
justify the granting of a petition for an H-lB specialty occupation visa. See, e.g., Tapis 
- - - - -- --- - ·- - -- - ·- ·· ··- - -- --- - - - - - - - -- - - - ----- - --- - - ------ --------
(b)(6)
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Page 15 
general-purpose degree are not probative to the issue of whether the petitioner's proffered 
position requires a bachelor's degree in a specific specialty, or the equivalent. 
In this matter, the advertisements varied from a requirement of six to eight years of experience 
only to advertisements requiring only a general bachelor's degree and varying degrees of 
experience to advertisements requiring a bachelor's degree in hospitality or restaurant 
management and varying degrees of experience. The advertisements submitted reinforce the 
Handbook's report that there are a wide variety of methods available to enter into the occupation 
of a restaurant manager. Contrary to the petitioner's assertion, the limited number of 
advertisements submitted does not establish that a bachelor's degree in restaurant management, 
hospitality management, or a closely related field such as culinary arts, is the minimum 
requirement for comparable restaurant manager positions in the country. Even if all of the job 
postings indicated that 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 does not 
demonstrate what statistically valid inferences, if any, can be drawn from these advertisements 
with regard to determining the common educational requirements for entry into parallel positions 
in similar organizations.9 
We have also reviewed the opinion of a representative of the National 
Restaurant Association, one of the restaurant industry's associations. writes 
regarding his perspective on restaurants and in particular fine dining restaurants like the 
petitioner. He observes that restaurant managers at such restaurants perform a number of duties 
and opines that "[s]ince such skills may be obtained at the undergraduate level, [the petitioner's 
president] is justified in his request that his restaurant manager hold a bachelor's degree ." 
/d. 
Int'l v. INS, 94 F.Supp.2d 172, 175-76 (D.Mass. 2000); Shanti, 36 F. Supp.2d at 1164-66; 
cf Matter of Michael Hertz Assocs. , 19 I & N Dec. 558, 560 ([Comm' r] 1988) (providing 
frequently cited analysis in connection with a conceptually similar provision ). This is as it 
should be: elsewise, an employer could ensure the granting of a specialty occupation visa 
petition by the simple expedient of creating a generic (and essentially artificial) degree 
requirement. 
9 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"). 
As such, even if the job announc ements supported the finding that the position (for organizations similar 
to the petitioner) required a bachelor's or higher degree in a specific specialty or its equivalent, it cannot 
be found that such a limited number of postings that appear to have been consciously selected could 
credibly refute the findings of the Handbook published by the Bureau of Labor Statistics that such a 
position does not require at least a baccalaureate degree in a specific specialty for entry into the 
occupation in the United States. 
(b)(6)
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Page 16 
First, we observe that the pertinent question in this matter is not whether the petitioner is justified 
in requesting that its restaurant manager hold a bachelor's degree, but whether the proffered 
position, as described by the petitioner, requires a bachelor's degree in a specific specialty, or the 
equivalent, to perform the duties of the position. In that regard, does not discuss 
the duties of the proffered position in any substantive detail. As a result, the degree to which 
is aware of the actual duties the beneficiary will perform .is not evident. 
Additionally, . does not expressly state the full content of, whatever documentation 
and/or oral transmissions upon which he based his opinion. For instance, does not 
indicate whether he visited the petitioner's business premises or communicated with anyone 
affiliated with the petitioner as to the performance of the general list of responsibilities the 
beneficiary would perform. Nor does reference and discuss any studies, surveys, 
industry publications, other authoritative publications, or other sources of empirical information 
which he may have consulted in the course of whatever evaluative process he may have 
followed. 
Further, does not indicate that he considered, or was even aware of, the fact that the 
petitioner submitted an LCA that was certified for a wage-level that is only appropriate for a 
comparatively low, entry-level position relative to others within its occupation which, as noted 
infra, signifies that the beneficiary is only expected to possess a basic understanding of the 
occupation. This is a significant omission, in that it suggests an incomplete review of the 
position in question and a faulty factual basis for ultimate conclusion as to the 
educational requirements of the petitioner's proffered position. 
Moreover, if is offering his opinion as it relates to a general industry standard, he 
has not established that a requirement of a bachelor's or higher degree in a specific specialty, or 
its equivalent is common to the petitioner's industry for organizations that are similar to the 
petitioner who employ individuals in positions parallel to the proffered position. We observe 
that states the belief of his association that "some employers require that 
restaurant managers hold a bachelor's degree or its equivalent." However, "some " is not 
indicative of a "common" requirement. Rather, observation coincides with the 
Handbook's report that there are many avenues to attain a position as a restaurant manager, 
including a high school diploma up to and including a bachelor's degree. 10 letter 
does not suggest, let alone establish, that a bachelor's degree in a specific discipline is common 
to the petitioner's industry or is required to perform the duties of the proffered position. 
We may, in our discretion, use as advisory opinions or statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, 
USCIS is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 79 1 (Comm. 1988). As a reasonable exercise of our discretion we 
10 
In this matter, it is clear from letter that he does not believe that a bachelor's degree in a 
specific specialty is required to perform the duties of a restaurant manager. Rather, refers 
only to a general bachelor's degree or its equivalent as the degree that some employers may require. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
decline to regard the advisory opm10n letter as probative of any criterion of 8 C.F.R. 
§ 214.2( h)(4)(iii)(A). For efficiency's sake, we hereby incorporate the above discussion and 
analysis regarding the opinion letter into the analysis of each criterion at 8 C.F.R. 
§ 214.2( h)(4)(iii)(A). 
Thus, based upon a complete review of the record of proceeding, the petitioner has not 
established that a 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. Thus, for the reasons discussed above, the petitioner has not satisfied the first 
alternative prong of 8 C.F.R. § 214.2( h)(4)(iii)( A)(2). 
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 support of its assertion that the proffered position qualifies as a specialty occupation, the 
petitioner submitted various documents, including reviews of its business. However, a review of 
the record of proceeding indicates that the petitioner has not demonstrated that the duties the 
beneficiary will be responsible for or 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. Furthermore, the petitioner has not established why a few 
related courses or industry experience alone would be insufficient preparation for the proffered 
position. For instance, the petitioner did not submit information relevant to a detailed course of 
study leading to a specialty degree and did not establish how such a curriculum is necessary to 
perform the duties it may believe are so complex and unique. While a few related courses may 
be beneficial, or even required, in performing certain duties of the position, the petitioner has 
failed to demonstrate how an established curriculum of such courses leading to a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is required to perform the duties of the 
proffered position. The description of the duties does not specifically identify any tasks that are 
so complex or unique that only a specifically degreed individual could perform them. The record 
lacks sufficiently detailed information to distinguish the proffered position as more complex or 
unique from other positions that can be performed by persons without at least a bachelor's degree 
in a specific specialty, or its equivalent. 
This is further evidenced by the LCA submitted by the petitioner in support of the instant 
petition, which is certified for only a Level I (entry) wage. Fundamentally, it appears that (1) the 
petitioner previously claimed to DOL that the proffered position is a Level I, entry-level position 
to obtain a lower required wage; and (2) the petitioner is now claiming to users that the 
position is a higher-level and more complex position in order to support its claim that the 
position qualifies as a specialty occupation. The petitioner cannot have it both ways. Either the 
position is more senior and complex (based on a comparison of the employer's job requirements 
to the standard occupational requirements) and thereby necessitates a higher required wage or it 
is an entry-level position for which the lower wage offered to the beneficiary in this petition is 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
acceptable. To permit otherwise would be directly contrary to the U.S. worker protection 
provisions contained in section 212(n)(l )(A) of the Act and its implementing regulations.11 
Consequently, as the petitioner does not demonstrate how the proffered position is so complex or 
unique relative to other restaurant manager positions that do not require at least a baccalaureate 
degree in a specific specialty or its equivalent for entry into the occupation in the United States, 
it cannot be concluded that the petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)( A)(2). 
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. 
To this end, USCIS reviews the petitioner's past recruiting and hiring practices, information 
regarding employees who hold or have previously held the position, as well as . any other 
documentation submitted by a petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber 
candidates but is necessitated by performance requirements of the position. A petitioner's 
perfunctory declaration of a particular educational requirement will not mask the fact that the 
position is not a specialty occupation. USCIS must examine the actual employment 
requirements, and, on the basis of that examination, determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the 
critical element is not the title of the position, or the fact that an employer has routinely insisted 
on certain educational standards, but whether performance of 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 specific specialty as the minimum for entry 
into the occupation as required by the Act. According to the Court in Defensor, "To interpret the 
regulations any other way would lead to an absurd result." !d. at 388 . If US CIS were 
constrained to recognize a specialty occupation merely because the petitioner has an established 
practice of demanding certain educational requirements for the proffered position - and without 
consideration of how a beneficiary is to be specifically employed - then any alien with a 
bachelor's degree in a specific specialty could be brought into the United States to perform 
non-specialty occupations, so long as the employer required all such employees to have 
baccalaureate or higher degrees. See id. 
Upon review of the record, the petitioner has not submitted sufficient probative 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, the petitioner has not satisfied the third 
criterion of 8 C.F.R. § 214.2(h)(4) (iii)(A). 
Finally, the petitioner has not satisfied the fourth criterion of 8 C.F.R. § 214.2(h)(4)(ii i)(A), 
11 
See also Caremax v. Holder, ---F Supp. 2d---, 2014 WL 149362 1 (N.D. Cal. 2014)("An entry-level 
position with entry-level pay is hardly so complex or unique that it requires an applicant with a bachelor's 
degree in a specific specialty"). 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
which is reserved for positions with specific duties so specialized and complex that their 
performance requires knowledge that is usually associated with the attainment of a baccalaureate 
or higher degree in a specific specialty or its equivalent. Again, relative specialization and 
complexity have not been sufficiently developed by the petitioner as an aspect of the proffered 
position. Again the petitioner has not established why a few related courses or industry 
experience alone is insufficient preparation for the proffered position. In other words, the 
petitioner has failed to demonstrate that the position proffered here requires the theoretical and 
practical application of a body of highly specialized knowledge usually associated with the 
attainment of a baccalaureate or higher degree. 
In addition, we again point out that the petitioner has designated the proffered position as a Level 
I position on the submitted LCA, indicating that it is an entry-level position for an employee who 
has only basic understanding of the occupation.12 Thus, the petitioner's assertions that the 
beneficiary will operate at the senior level within the restaurant are materially inconsistent with 
its designation of the proffered position as Level I (entry-level) wage. The record does not 
include sufficient consistent and probative evidence to establish that the position proffered here 
encompasses the performance of specialized and complex duties the nature of which require 
knowledge usually associated with at least a bachelor's degree in a specific specialty. 
V. PRIOR APPROVALS 
The petitioner noted that USCIS approved other petitions that had been previously filed by other 
petitioners on behalf of beneficiary. The director's decision does not indicate whether she 
reviewed the prior approvals of the other nonimmigrant petitions. However, if the previous 
nonimmigrant petitions were approved based on the same unsupported and contradictory 
assertions that are contained in the current record, the approvals constituted error on the part of 
the director. 
We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely bec ause of prior approvals that may have been erroneous. See, e.g., Matter 
of Church Scientology International, 19 I&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). 
12 
See U.S. Dep't of Labor, Emp 't & Training Adm in., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.g ov/ 
pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
VI. THE BENEFICIARY'S QUALIFICATIONS 
We do not need to examine the issue of the beneficiary's qualifications, because the petitioner 
has not provided sufficient evidence to demonstrate that the proffered position is a specialty 
occupation. In other words, the 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 petitioner did not submit sufficient evidence regarding the 
proffered position to determine whether it will require 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. Therefore, we need not and will not address the beneficiary's qualifications further, 
except to note that, in any event, the evaluation of the beneficiary's work experience submitted 
by the petitioner is insufficient to establish that the beneficiary possesses the equivalent of a U.S. 
bachelor's degree in any specific specialty. Specifically, the claimed equivalency was based on 
experience, and there is insufficient probative evidence that the evaluator 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 and that the beneficiary also has recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. See 8 C.F.R. 
§ 214.2( h)(4)(iii) (C)(4) and (D)(l). As such, 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. 
VII. CONCLUSION 
An application or petition that does not comply with the technical requirements of the law may 
be denied by us even if the service center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 11 77, 118 3 (D.C. Cir. 
2003) ("When an agency offers multiple grounds for a decision, we will affirm the agency so 
long as any one of the grounds is valid, unless it is demonstrated that the agency would not have 
acted on that basis if the alternative grounds were unavailable."). 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision.13 In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C . § 1361; Matter 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. 
13 As these issues preclude approval of the petition, we will not address any of the additional issues we 
have observed on appeal.