dismissed H-1B Case: Beauty Services

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
identifying durn deiekd to U. S. Citizenship pm~~nt dearly unwarranted and Immigration 
~~vEQs~X~ of pelrsod gd~a6:~ Services 
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FILE: Office: VERMONT SERVICE CENTER Date: Sf$) () 6 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 l Ol(a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition. The Administrative 
Appeals Office (AAO) subsequently incorrectly rejected the appeal as untimely filed. The AAO then reopened 
the matter on its own motion, but adjudicated the appeal prior to the expiration of the 30-day period within which 
the petitioner had to supplement the record. On January 18,2005, the AAO again reopened the matter on its own 
motion and provided the petitioner an additional 30-day period in which to supplement the record. On February 
3,2005 the AAO received a request from counsel to extend the 30-day period to March 18,2005. On February 4, 
2005, the AAO granted this request. On April 25, 2005, the AAO adjudicated the appeal and indicated that it had 
not received supplemental evidence. On May 3, 2003, counsel faxed to the AAO a letter stating that the 
petitioner had sent a brief, which had been received by the AAO on March 18, 2005. Counsel resubmitted the 
brief on May 6, 2005. The matter is again reopened and the decision of April 25, 2005 is withdrawn. The matter 
is before the AAO on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner provides beauty enhancement services and products. It seeks to employ the beneficiary as an 
operations manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker 
in a specialty occupation pursuant to section lOl(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 10 l(a)(l S)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel states that the proffered position qualifies as a specialty occupation and submits additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. fj 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. 
Pursuant to 8 C.F.R. 3 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) 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 
Page 3 
(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
5 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; (5) letters from the AAO; and (6) Form I-290B and supporting documentation. The 
AAO reviewed the record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as an operations manager. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; and the petitioner's response 
to the director's request for evidence. According to this evidence, the beneficiary would perform duties that 
entail implementing industry-specific software for recordkeeping, organizing information, and billing; 
directing, planning, and implementing policies and objectives aligned with the business plan; directing 
business activities; analyzing operations and evaluating performance which determines cost reductions, 
investment needs, and other improvements; directing and coordinating financial and budget activities that 
fund operations, maximize investments, and increase efficiency; assigning responsibilities to subordinates, 
and overseeing production, sales, pricing, and distribution of products; supervising non-merchandising 
activities such as advertising, purchasing, credit, and accounting; recruiting, supervising, and aligning staff 
with core business needs; and participating in marketing managing risk exposure. The petitioner's March 10, 
2003 letter elaborated on the beneficiary's duties. The petitioner indicated that the beneficiary was qualified 
for the proffered position based on her baccalaureate degree in hotel, restaurant, and tourism administration 
with majors in accounting and human resources management. 
The director denied the petition, stating that the excerpt from the Department of Labor's (DOL) Career Guide 
to Industries about management and public relations positions was inapplicable; it pertained to consulting 
services, whereas the beneficiary will be the proprietor of a salon and spa. The director found the proposed 
position resembles that of personal appearance workers as that occupation is described in the Department of 
Labor's Occupational Outlook Handbook (the Handbook), and the director stated that the Handbook reports 
that this occupation does not require a bachelor's degree in a s~ecific specialty. The director found - 
unpersuasiv~ stitement that the proffered position qualifies bs a specialty occupation; CIS, 
the director in lcate cons1 ers an evaluation of a person's foreign education as an advisory opinion and that 
whether a position qualifies as a specialty occupation is determined according to the law. The director found 
the submitted job posting unpersuasive; that the petitioner did not establish that the industry or the proposed 
position requires a baccalaureate degree in a specific specialty; and that the beneficiary's duties are not so 
specialized and complex that the knowledge required to perform them is usually associated with the attainment 
of a baccalaureate degree. 
Page 4 
In the appeal brief, counsel states that the petitioner generated $241,012 during its first year, and refers to a 
financial statement for the period ended December 3 1, 2003. Counsel delineates the beneficiary's duties and 
role as the sole officer and director of the company, and turning to the Handbook and document entitled 
"Table 1," indicates that they show that the proposed position is analogous to the specialty occupations of 
budget analyst, financial manager, and high-level executive, and particularly a management consultant. 
Counsel asserts that the director failed to consider the beneficiary's duties associated with the beauty products 
division, and erroneously likens the proposed position to a personal appearance worker. Counsel indicates 
that the beauty products division requires an FDA application, which is being processed, before launching 
full-scale the importation and distribution of products. Counsel asserts that the salon-spa division has five 
full-time employees, uses the services of independent contractors, and will hire additional employees. To 
show that the petitioner provides services to New York City, counsel points to a contractual agreement with a 
public relations company and a magazine article. Counsel asserts that the director erroneously based his 
denial on the petitioner's size, and refers to Board of Immigration Appeal and AAO decisions to support her 
assertion. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. 5s 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimu~n requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria 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, 1165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. The AAO routinely consults the Handbook about the job duties and 
educational requirements of particular occupations. 
The director determined that the proposed position is encompassed within the Handbook's classification of 
barbers, cosmetologists, and other personal appearance workers, which are occupations that do not require a 
bachelor's degree. The AAO finds that the proffered position is more analogous to that of general and 
operations managers as these occupations are described in the Handbook. The Handbook states that general 
and operations managers plan, direct, or coordinate the operations of companies; formulate policies; manage 
daily operations; and plan the use of materials and human resources. The Handbook further reports: 
The formal education and experience of top executives varies as widely as the nature of their 
responsibilities. Many top executives have a bachelor's or higher degree in business 
administration or liberal arts. 
The Handbook continues: 
Because many top executive positions are filled by promoting experienced, lower level 
managers when an opening occurs, many top managers have been promoted from within the 
organization. In industries such as retail trade or transportation, for instance, it is possible for 
individuals without a college degree to work their way up within the company and become 
managers. However, many companies prefer that their top executives have specialized 
backgrounds and, therefore, hire individuals who have been managers in other organizations. 
The Handbook explains that candidates for general and operations manager positions are not required to hold 
a bachelor's degree in a specific specialty; employers accept degrees in business administration or the liberal 
arts or promote lower level managers who may not hold degrees. As such, the petitioner fails to establish that 
a baccalaureate or higher degree, or its equivalent, in a specific specialty is the normal minimum requirement 
for entry into the particular position, which in this case is an operations manager. 
On appeal, counsel refers to the to contend that the 
specialty occupation. The AAO finds unpersuasive. In sserts 
that a bachelor's degree in business is required for the proffered position; but 
independent evidence to substantiate his assertion. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The AAO disagrees with counsel's assertion that the proposed position is similar to the occupations of budget 
analyst, financial manager, and management consultant. In the Handbook, a budget analyst and a financial 
manager are depicted as spending their time with budgetary and financial matters. The evidence in the record 
does not depict the petitioner as generating sufficient income for the proposed duties that relate to budgetary 
and financial matters to rise to the level of those of a budget analyst or financial manager. The documents 
entitled "Compiled Financial Statements, Inception (October 15,2002) to December 3 1,2002"; "Forecasted 
Statement of Revenue and Expenses, Sixteen Months Ending December 3 1,2004" and "Forecasted Statement 
of Revenue and Expenses (Cash Basis), Sixteen Months Ending December 3 1,2003" do not disclose the 
petitioner's actual gross annual income. Yet, the level of income generated by the petitioner has a direct and 
substantial bearing on the scope, complexity, and depth of the proposed duties relating to budgets and 
financial matters. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Crafi of Culfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Page 6 
Counsel's claim that the proposed position is similar to a management consultant is not convincing. The 
Handbook indicates the following are the educational requirement of a management analyst: 
Educational requirements for entry-level jobs in this field vary widely between private 
industry and government. Most employers in private industry generally seek individuals with 
a master's degree in business administration or a related discipline. Some employers also 
require additional years of experience in the field in which the worker plans to consult, in 
addition to a master's degree. Some will hire workers with a bachelor's degree as a research 
analyst or associate. Research analysts usually need to pursue a master's degree in order to 
advance to a consulting position. Most government agencies hire people with a bachelor's 
degree and no pertinent work experience for entry-level management analyst positions. 
The Handbook statement, that most employers in private industry generally seek persons with a master's 
degree in business administration or a related field, establishes that a master's degree or its equivalent is 
norn~ally the minimum requirement for entry into the particular position, management analyst. The 
Handbook then states that some employers in private industry hire workers with a bachelor's degree as a 
research analyst or associate, which are not management positions such as the position offered here. The 
AAO reads this paragraph in context as indicating that employers in private industry seeking to hire 
management analysts require a master's degree in business administration or a related discipline. 
The director properly found the submitted job postings unpersuasive in establishing the first alternative prong 
of the second criterion - that a specific degree requirement is common to the industry in parallel positions 
among similar organizations. The employers differ in nature from the petitioner; they also do not have the 
same degree requirement as the petitioner. Solix Systems, a provider of enterprise solutions, prefers but does 
not require a bachelor's degree; J&B Software, a provider of checkJlockbox processing services, requires 
either a bachelor's degree or equivalent experience; Scholastic Book Fairs, a provider of books, does not 
require a bachelor's degree in a specific specialty; Management Recruiters International (MRI) requires a 
bachelor's degree in engineering for the operations manager of a power plant, and its duties differ 
fundamentally from the proffered position; another MRI posting does not require a bachelor's degree in a 
specific specialty; Maybelline requires a bachelor's degree, but not in a specific specialty; L'Oreal USA 
Corporate does not require a bachelor's degree, and the duties of its position differ from those of the proposed 
position. The petitioner, a provider of beauty enhancement services and products, differs in nature from the 
following employers: New Moon Foundation (provides education and land restoration); Stryker Corporation 
(develops, manufactures, and sells surgical and medical products); Mosaic Sales Solutions (a marketing 
company); and Interface Data Systems (a manufacturer of membrane switches). Checkcare Systems does not 
disclose its nature. 
No evidence satisfies the second alternative prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A) by showing that the 
proffered position is so complex or unique that it can be performed only by an individual with a degree in a 
specific specialty. Again, the Handbook explains that candidates for general and operations manager 
positions are not required to hold a bachelor's degree in a specific specialty. 
Page 7 
.No evidence establishes the third criterion at 8 C.F.R. § 214,2(h)(4)(iii)(A): that the petitioner normally 
requires a degree or its equivalent for the position. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. Other than evaluation, which 
the AAO has already discussed, there is no evidence in the record that would establish this criterion. The 
petitioner's evidence including the certificate of incorporation, financial and licensing records, insurance 
policy, lease agreement, bill of sale, magazine article, brochures, photographs, Business Enhancement Plan, 
financial documents, contractual agreement with a public relations firm, and trademark application notice do 
not establish that the nature of the position's duties are so specialized and complex that the knowledge 
required to perform them is usually associated with the attainment of a baccalaureate degree. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.