dismissed H-1B Case: Food Service

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invasion of personal pl*l)cy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 203 53897 Office: CALIFORNIA SERVICE CENTER Date: APR ]L 7 
PETITION: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b) 
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 
WAC 04 203 53897 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a Japanese buffet restaurant that seeks to employ the beneficiary in one of its franchise 
locations as a food service director. The petitioner endeavors to classify the beneficiary as a nonimrnigrant 
worker in a specialty occupation pursuant to 8 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 5 214.2(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 
(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; and (5) 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 a food service director. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's July 12, 2004 letter in support of the petition; and the 
WAC 04 203 53897 
Page 3 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: managing and overseeing all issues related to approximately 100 food service 
department personnel; supervising four general restaurant managers and up to five assistant managers; 
purchasing food and supplies and supervising food storage and preparation; developing and implementing a 
food service program; developing standards of service and performance quality; developing and 
implementing excellent customer service, effective team performance, and efficient cost-and-profit goals; and 
assisting in the formulation of the petitioner's strategic business plans. The petitioner indicated that a 
qualified candidate for the job would possess a bachelor's degree in hospitality management or a related field. 
The director found that the proffered position was not a specialty occupation. Citing to the Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook), 2004-2005 edition, the director noted that the 
minimum requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific 
specialty. The director found further that the petitioner failed to establish any of the criteria found at 
8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proposed duties are so complex as to require a related bachelor's 
degree. Counsel states further that CIS previously approved petitions filed by the petitioner for the same job 
duties and responsibilities, and that the Dictionary of Occupational Titles (DOT) assigns the position an SVP 
rating of 8, which according to counsel, requires a degree to enter into the position. Counsel also states that 
the record contains job advertisements and industry letters as supporting documentation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 5 214.2(h)(4)(iii)(A). Therefore, the proffered position is nat a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum 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 fm 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 115 1, 1165 (D. 
Minn. 1999)(quoting Hird/Blaker COT. v. Sava, 7 12 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is a specialty 
occupation. No evidence in the Handbook, 2006-2007 edition, indicates that a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required for a food service manager job. 
Counsel's reference to and assertions about the relevance of information from the DOT are not persuasive. 
The DOT'S SVP rating does not indicate that a particular occupation requires the attainment of a 
baccalaureate or higher degree, or its equivalent, in a specific specialty as a minimum for entry into the 
occupation. An SVP rating is meant to indicate only the total number of years of vocational preparation 
required for a particular position. The classification does not describe how those years are to be divided 
WAC 04 203 53897 
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among training, formal education, and experience, nor specifies the particular type of degree, if any, that a 
position would require. 
The record contains letters from the presidents of two restaurants who both assen that positions such as the 
proffered position require a related bachelor's degree. The writers, however, do not provide any evidence in 
support of their assertion or rely on industry surveys, data or other documentation to reach the conclusion that 
the position requires a bachelor's degree in a field related to restaurant management. The Handbook is a 
compilation of results of nationwide industry questionnaires, surveys and personal interviews by the DOL, and 
indicates that there is no specific degree requirement for entry into the field. The AAO may, in its discretion, use 
as advisory opinions statements submitted as expert testimony. However, where an opinion is not in accord 
with other information or is in any way questionable, the AAO is not required to accept or may give less 
weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Cornrn. 1988). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted two Internet job postings for 
food service directors. There is no evidence, however, to show that the employers issuing those postings are 
similar to the petitioner, or that the advertised positions are parallel to the instant position. The advertisements 
are for food service directors at a college and in a nursing home. The petitioner, however, is not a college or a 
nursing home. Further, the advertisement for the nursing home food service director stipulates only that a 
"college degree" is preferred. Thus, the advertisements have no relevance. 
The record also does not include any evidence from professional associations regarding an industry standard, 
or documentation to support the complexity or uniqueness of the proffered position. The petitioner, therefore, 
has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, the petitioner states that the petitioner normally requires a 
bachelor's degree for the proffered position and submits evidence of previous H-1B visa approvals. The 
record of proceeding does not contain copies of the visa petitions that the petitioner claims were previously 
approved. It must be emphasized that each petition filing is a separate proceeding with a separate record. 
See 8 C.F.R. 5 103.8(d). In making a determination of statutory eligibility, CIS is limited to the information 
contained in that individual record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Cra@ of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(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. 
The petitioner states that the beneficiary will be managing th in Daly City, California, 
which has 11,500 square feet, employs 100 workers, and has 500-700 daily patrons. The petitioner, however, 
- - 
does not submit any corroborating documentation to establish these assertions, and does not describe duties 
that are distinguishable from those of other food service managers. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of.meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornm. 1972)). 
WAC 04 203 53897 
Page 5 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 3 2 14.2(h)(4)(iii)(A)(4). 
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. 3 
1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.