dismissed H-1B Case: Food Service

pmc COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 133 50143 Office: CALIFORNIA SERVICE CENTER Date: APR 0 7 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 10 1 (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 
WAC 04 133 50143 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a sushi bar and restaurant that seeks to employ the beneficiary as a marketing manager. The 
petitioner endeavors to classifL the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
fj I0 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 10 l(a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence including: a copy of the petitioner's conditional-use permit of 
the a copy of the job description for a "general manager - restaurant" position; and an 
undated letter signed by the petitioner's sushi chefs. 
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. fj 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. 
fj 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. 
WAC 04 133 50143 
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The petitioner is seeking the beneficiary's services as a marketing manager. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's February 14, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: 
1. Work in a public relations manner to get editorial coverage from local news sources as well 
as national food and beverage publications; 
2. 
 [Olversee the creation of all marketing materials with an eye for the Japanese aesthetic, 
both traditional and modern; 
3. 
 [Ilnstall in-house marketing materials for point of sales contact, including mailing lists, 
check presenter postcards and table tents; and 
4. After about 9 months, when [the petitioner] envisions going forward with [its] first 
expansion location [the beneficiary] will have to do research and engage in other more 
academic marketing work to explore the best advertising to be used and best promotion to 
be used in those new markets. . . . 
The petitioner indicated that a qualified candidate for the job would possess a relevant bachelor's degree and 
fluency in English and Japanese. 
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. § 2 14.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner is a rapidly expanding restaurant whose Japanese- 
speaking sushi chefs and customers will need someone with Japanese-speaking skills. Counsel states further 
that now there are two restaurants and the beneficiary, therefore, as the "overall marketing manager for the 
parent company," would be required to assist the marketing managers in each restaurant location. Counsel 
also states that the record contains job advertisements to demonstrate that similar positions require a college 
degree. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. $ 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) 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 firms or individuals in the industry attest that such firms 
WAC 04 133 50143 
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"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999)(quoting HirdBlaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (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, which combines 
the duties of a marketing manager with a food service manager, 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 either a marketing manager position or a food service manager position. Further, 
although counsel asserts that the beneficiary would serve as the "overall marketing manager for the parent 
company" and assist the marketing managers in each restaurant location, the record contains no evidence that 
the petitioner employs multiple marketing managers and, therefore, it is unclear what marketing managers the 
beneficiary will supervise. Moreover, although counsel asserts that a related bachelor's degree is required for 
the proffered position, the "general manager - restaurant" job description he submits on appeal stipulates that, 
while a bachelor's degree in hotellrestaurant management is desirable, the required minimum education or 
formal training is a high school diploma or GED. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's 
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). The petitioner also has not established that the beneficiary's interpreter-related 
duties are of such complexity that a baccalaureate degree in a specific specialty, as distinguished from 
familiarity with the English and Japanese languages or a less extensive education, is necessary for the 
successful completion of its duties. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted an Internet job posting for a 
restaurant marketing assistant. The advertisement stipulates only that a "BA degree" is required, thereby 
confirming the position of the DOL in its Handbook, namely that neither a marketing manager position nor a 
food service manager position requires a bachelor's degree in a specialty. Thus, the advertisement has no 
relevance. 
The record also does not include any evidence from firms, individuals, or 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. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As counsel does not address this issue on appeal, it will not be discussed 
further. The evidence of record does not establish this criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(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. 
WAC 04 133 50143 
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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. 5 214.2(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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.