dismissed H-1B Case: Food Service

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 264 53 142 Office: NEBRASKA SERVICE CENTER Date: APR 2 6 2886 
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. § 1 101 (a)(l 5)(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. 
- 
Administrative Appeals Office 
LIN 04 264 53142 
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DISCUSSION: The director of the Nebraska Service Center denied the nonimmigrant visa petition and 
the matter is now before the Administrative Appeals Office (MO) on appeal. The appeal will be 
dismissed. The petition will be denied. 
The petitioner is a foodservice company that provides catering services to universities, was established in 
1987, and has 85 employees. It seeks to employ the beneficiary as a catering and concessions manager 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1 lOl(a)(l5)(H)(i)(b). The director denied the petition based on his determination that the proffered 
position was not a specialty occupation. 
The record of proceeding before the MO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the director's RFE, dated 
November 1, 2004; (4) the director's denial letter; and (5) Form I-290B, with the petitioner's appeal brief, 
and new and additional evidence. 
The issue before the MO is whether the proffered position qualifies as a specialty occupation. To meet 
its burden of proof in this regard, a petitioner must establish that the job it is offering to the beneficiary 
meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1184(i)(l) defines the term 
"specialty occupation" as one 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 term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An occupation which 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 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. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must 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; 
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(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 above criteria to mean not 
just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proffered position. 
To determine whether a particular job qualifies as a specialty occupation, CIS 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. CIS must examine the ultimate employment of 
the alien, and determine whether the position qualifies as a specialty occupation. CJ Defensor v. 
Meissner, 201 F.3d 384 (5~ Cir. 2000). 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. 
The petitioner states that it is seeking the beneficiary's services as a catering and concessions manager 
At the time of filing, and in response to the RFE, the petitioner stated that the duties of the proffered 
position would require the beneficiary to plan, direct, and coordinate catering service activities, and 
oversee the daily activities of dining services and event concession stands. The petitioner specified the 
job duties as follows: 
Schedule associates for catering events on a weekly basis; 
Compare budgeted labor to estimated sales to ensure the labor budget is met; 
Meet with customers to organize event details; 
Assign duties to associates and work with the chef to produce a proper flow of events; 
Train associates to properly serve all types of events; 
Order food and supplies; and 
Track financial forms in order to adjust expenses if necessary; 
The petitioner stated that it required a bachelor's degree. 
The director found that the proffered position was not a specialty occupation because the duties are not so 
specialized and complex as to require a bachelor's degree in a specific field of study. The director noted 
that the petitioner submitted no evidence to establish that a baccalaureate degree or its equivalent is 
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normally the minimum requirement for entry into the position. The director found further that the 
petitioner failed to establish any of the criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
On appeal, counsel references a job description and degree requirement for the petitioner's Catering 
Manager I1 position that the petitioner included in the response to the RFE. The position's duties include 
budgeting, operational performance, supervising staff, and developing menu planning and food 
distribution policies. Counsel asserts that the Catering Manager I1 job position is similar to the proffered 
catering and concessions manager position because both require budgeting, operational performance, 
supervising staff, and developing menu planning and food distribution policies. In the response to the 
RFE, the petitioner submitted Internet job advertisements from food service companies to demonstrate the 
industry requirement for a related bachelor's degree. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
9 2 14.2@)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
To determine whether the duties just described are those of a specialty occupation, the AAO first 
considers the criteria at 8 C.F.R. § 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; and 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 
considered by the AAO when determining these criteria include: whether the Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook), on which the AAO routinely relies for the 
educational requirements of particular occupations, 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 1 15 1, 1 165 (D. Minn. 1999) 
(quoting Hird/Blaker COT. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO now turns to a consideration of the criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I), that a 
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the 
particular position. The AAO finds the proffered position to be similar to that of a food service manager, 
based on the discussion of that occupational title in the 2006-2007 edition of the Handbook. 
The 2006-2007 Handbook's description of the employment of food service managers, at 
http://www.bls.gov/oco/ocos023.htm, states: 
Food service managers are responsible for the daily operations of 
restaurants and other establishments that prepare and serve meals and 
beverages to customers. Besides coordinating activities among various 
departments, such as kitchen, dining room, and banquet operations, food 
service managers ensure that customers are satisfied with their dining 
experience. In addition, they oversee the inventory and ordering of food, 
equipment, and supplies and arrange for the routine maintenance and 
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upkeep of the restaurant, its equipment, and facilities. Managers 
generally are responsible for all of the administrative and human- 
resource functions of running the business, including recruiting new 
employees and monitoring employee performance and training. 
Managers interview, hire, train, and, when necessary, fire employees. 
Retaining good employees is a major challenge facing food service 
managers. Managers recruit employees at career fairs, contact schools 
that offer academic programs in hospitality or culinary arts, and arrange 
for newspaper advertising to attract additional applicants. Managers 
oversee the training of new employees and explain the establishment's 
policies and practices. They schedule work hours, making sure that 
enough workers are present to cover each shift. If employees are unable 
to work, managers may have to call in alternates to cover for them or fill 
in themselves when needed. Some managers may help with cooking, 
clearing tables, or other tasks when the restaurant becomes extremely 
busy. 
Food service managers ensure that diners are served properly and in a 
timely manner. They investigate and resolve customers' complaints 
about food quality or service. They monitor orders in the kitchen to 
determine where backups may occur, and they work with the chef to 
remedy any delays in service. Managers direct the cleaning of the dining 
areas and the washing of tableware, kitchen utensils, and equipment to 
comply with company and government sanitation standards. Managers 
also monitor the actions of their employees and patrons on a continual 
basis to ensure the personal safety of everyone. They make sure that 
health and safety standards and local liquor regulations are obeyed. 
In addition to their regular duties, food service managers perform a 
variety of administrative assignments, such as keeping employee work 
records, preparing the payroll, and completing paperwork to comply with 
licensing laws and reporting requirements of tax, wage and hour, 
unemployment compensation, and Social Security laws. . . . 
With respect to the educational qualifications for food service managers, the Handbook states: 
Experience in the food services industry, whether as a full-time waiter or 
waitress or as a part-time or seasonal counter attendant, is essential 
training for a food services manger. Many food service management 
companies and national or regional restaurant chains recruit management 
trainees from 2- and 4-year college hospitality management programs 
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which require internships and real-life experience to graduate. Some 
restaurant chains prefer to hire people with degrees in restaurant and 
institutional food service management, but they often hire graduates with 
degrees in other fields who have demonstrated experience, interest and 
aptitude. Many restaurant and food service manager positions- 
particularly self-service and fast-food-are filled by promoting 
experienced food and beverage preparation and service workers.. . . 
The Handbook does not establish a specific degree requirement for food service managers. Instead, it 
emphasizes food service experience, and indicates that companies that prefer degreed candidates often 
hire individuals whose degrees are in unrelated fields, but who have demonstrated experience, interest and 
aptitude. The Handbook is clear that a baccalaureate degree or its equivalent is not the normal minimum 
requirement for entry into the occupation. 
Accordingly, the AAO finds that the petitioner has failed to establish the proffered position as a specialty 
occupation under the first criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(I) - a baccalaureate or higher degree 
or its equivalent is normally the minimum requirement for entry into the particular position. 
The AAO now turns to a consideration of whether the proffered position may qualify as a specialty 
occupation under either of the prongs of the second criterion at 8 C.F.R. 4 214.2(h)(4)(ii)(A)(2) - the 
petitioner must establish that a degree requirement is common to the industry in parallel positions among 
similar organizations, or that the proffered position is so complex or unique that it can be performed only 
by an individual with a degree. 
To establish its degree requirement as the norm within its industry, the petitioner submitted five Internet 
job postings for food service managers. Counsel contends that these five advertisements are proof that a 
bachelor's degree is common in the food service industry. The AAO does not agree. 
None of the advertisements are published by organizations that may be considered similar to the 
petitioner, a university catering service. One of the advertisements is from an airline; another from a non- 
profit organization providing services for people with disabilities. The remaining advertisements come 
form the same Fortune 500 company, which provides a range of support and management services, only 
one of which is catering, to various types of organizations. The AAO notes that the descriptions of the 
duties in the five announcements either do no not describe employment parallel to the proffered position 
or lack the specificity necessary to make that determination. Accordingly, the announcements do not 
establish a degree requirement in parallel positions among similar organizations, as required to satisfy the 
criterion's first prong. 
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. Therefore, 
the record also fails to establish that the position qualifies as a specialty occupation under the second 
prong of the second criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) - the position is so complex or unique 
that it can be performed only by an individual with a degree. 
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Accordingly, the petitioner has not established its position as a specialty occupation under either prong of 
the second criterion. 
The AAO next considers the criteria at 8 C.F.R. 4 214.2(h)(4)(iii)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; and the nature of the specific duties is so specialized 
and complex that the knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree. 
To determine the petitioner's ability to meet the third criterion, the AAO normally reviews the 
petitioner's past employment practices, as well as the histories, including names and dates of 
employment, of those employees with degrees who previously held the position, and copies of those 
employees' diplomas. On appeal, counsel references the petitioner's submission of the job description for 
a Catering Manager I1 position as evidence that it normally requires a bachelor's degree for the proffered 
position. She contends that this job description is a "viable job description" for the proffered position as 
the petitioner is a national company and its job descriptions and duties remain constant across the country. 
Again, the AAO does not agree. 
The AAO finds the two positions to be distinct, with the Catering Manager I1 position having 
significantly broader responsibilities. The Catering Manager I1 job description indicates that the 
incumbent would be responsible for all catering activities, including booking, planning and the direction 
of all functions. However, the petitioner's description of the proffered employment outlines a role that 
would require the beneficiary to execute already established plans, ordering food and supplies and 
overseeing the petitioner's personnel. The Catering Manager I1 description also indicates that a manager 
in the position would be responsible for developing and maintaining marketing plans for the petitioner's 
catering department. Again, the proffered position assigns no marketing duties to the beneficiary. The 
financial responsibilities of the respective positions also differ. The proffered position would require the 
beneficiary only to "track financial forms in order to adjust expenses if necessary;" The Catering 
Manager I1 description states that this individual is responsible for the reporting of operational statements, 
reports, and operational budgets, and the review of the collection of receivables. Therefore, the 
petitioner's submission of its job description for a Catering Manager I1 does not establish its normal 
hiring practices regarding the proffered position. 
In that the record provides no evidence related to its hiring practices for the proffered position, it does not 
establish the proffered position as a specialty occupation under the third criterion at 8 C.F.R. 4 
2 14.2(h)(4)(iii)(A)(3). 
The fourth criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(4) requires that a petitioner establish that the nature 
of the specific duties of the position are so specialized and complex that the knowledge required to 
perform them is usually associated with the attainment of a baccalaureate or higher degree. The job 
description of the petitioner's catering and concessions manager does not, however, outline duties of the 
complexity or specialization to require the attainment of a baccalaureate degree or higher. The position 
involves basic duties for catering events such as scheduling and assigning associates, ordering food and 
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supplies, and meeting with customers to organize event details. Its duties, as described, do not require the 
beneficiary to have knowledge or skills beyond those normally required of a food service manager, 
employment that the Handbook indicates does not impose a degree requirement on those seelung entry- 
level employment. 
On appeal, counsel contends that the duties of the proffered position satisfy the criterion's requirements, 
and asserts that the position is complex because the beneficiary will be responsible for tracking food 
products through the Food and Drug Administration's (FDA) Hazard Analysis and Critical Control Point 
(HACCP) food safety approach, and is responsible for reporting monthly food safety inspections of each 
company building. The AAO will not, however consider the duties introduced by counsel on appeal, as 
they were not previously described by the petitioner, either at the time of filing or in response to the 
director's RFE. On appeal a petitioner cannot offer a new position to a beneficiary or materially change 
a position's title, level of authority within the organizational hierarchy or the associated job 
responsibilities. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). The AAO 
notes that these HACCP traclung duties are also not identified in the Catering Manager I1 job description, 
the position counsel contends reflects the duties of the proffered position. 
Therefore, the proffered position has not been established as a specialty occupation under the 
requirements at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets the requirements for a specialty occupation set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
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.