dismissed H-1B Case: Food Service

identeing data &hdd 
prevent clearly unwarranted 
invasion of pers~nd $V~Y 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: 
 EAC 04 264 50784 Office: VERMONT SERVICE CENTER 
 Date: JUN 0 2 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 1 Ol(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. 
EAC 04 264 50784 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant 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 donut shop that seeks to employ the beneficiary as a food services manager and to classify 
her as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 101 (a)(l S)(H)(i)(b). 
The director denied the petition on the basis that the 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. 9 214.2(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; 
(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. 
214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific field of study that 
is directly related to the proposed position. 
The record of proceeding before the AAO contains, in part: (1) Form 1-129 with supporting documents 
including the petitioner's company support letter; (2) the director's decision; and (3) Form I-290B with 
accompanying brief. The AAO reviewed the record in its entirety before issuing its decision. 
The petitioner seeks the beneficiary's services as a food services manager. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the company support letter; 
EAC 04 264 50784 
Page 3 
and the petitioner's response to the RFE. According to this evidence, the beneficiary would perform duties 
that entail overseeing the daytime production in the kitchen; ensuring that the prescribed food safety 
procedures are followed by all employees handling food; investigating and resolving customer complaints 
about food quality and service; estimating food consumption; conducting inventory; dealing with suppliers 
and scheduling timely delivery of supplies; tallying cash and charge receipts; logging employees' hours; 
firing, hiring, and training subordinate employees; and complying with the laws that affect the day-to-day 
operations of the business. The petitioner stated that the job duties require the beneficiary to have a 
bachelor's degree. 
The director found that the duties reflect those normally performed by small restaurant supervisors/managers. 
The director referred to the Department of Labor's Occupational Outlook Handbook (Handbook), which 
indicated that there is no requirement of a bachelor's or higher degree in a specialized area for employment in 
these positions. The director determined that the proposed duties and stated level of responsibility failed to 
establish that the position offered met any of the required criteria for classification as a specialty occupation. 
On appeal, counsel concedes that a degree in a specific specialty is not an industry-wide requirement, but 
contends that the proposed position is a specialty occupation because this particular position is so complex or 
unique that it can be performed only by an individual with a degree. 
The petitioner need only satisfy one of the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A) to establish that a position 
is a specialty occupation. Counsel only asserts that the proposed position is specialty occupation under the 
second alternative prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), that the petitioner's particular position is so 
complex or unique that it can be performed only by an individual with a degree. The AAO examined the 
position under all of the regulatory criteria. Upon a thorough of the record, the AAO finds that the petitioner 
has not established any of the criteria outlined in 8 C.F.R. fj 214.2(h)(4)(iii)(A). Therefore, the proposed 
position is not a specialty occupation. In the following analysis, the AAO confines most of its review to the 
single criterion asserted by counsel, that is, the second alternative prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
To determine 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 bachelor's degree in a specific field of study as the minimum for entry into the occupation as 
required by the Act. 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for its 
information about the duties of particular occupations. Based on the petitioner's description and a thorough 
review of the Handbook, the AAO finds that the duties of the proposed position most resemble those of a food 
service manager at a small restaurant. According to the Handbook, food service managers are responsible for 
the daily operations of restaurants and other establishments that prepare and serve meals and beverages to 
customers. The duties of the proposed position reflect those listed in the Handbook for food service managers 
such as analyzing prices and handling customer complaints, overseeing the daytime production in the kitchen; 
ensuring that the prescribed food safety procedures are followed by all employees handling food; and 
estimating food consumption. 
To determine whether the position is a specialty occupation, the AAO first turns to the first criterion at 
8 C.F.R. 214.2(h)(4)(iii)(A) - a bachelor's or higher degree or its equivalent, in a specific field of study, is 
normally the minimum requirement for entry into the particular position. The AAO looks at the Handbook's 
discussion of the educational requirements for food service managers and travel agents to determine whether 
EAC 04 264 50784 
Page 4 
or not the petitioner has established this criterion. A review in the Handbook of the educational requirements 
for food service manager positions reveals the following: 
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 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. Waiters, waitresses, chefs, and fast-food workers demonstrating potential for 
handling increased responsibility sometimes advance to assistant manager or management 
trainee jobs. Executive chefs need extensive experience working as chefs, and general 
managers need prior restaurant experience, usually as assistant managers. 
The Handbook indicates that jobs in food service management do not normally require at least a bachelor's 
degree in a specific specialty for entry into the field. Some employers consider those with relevant work 
experience suitable for jobs in this area. Some employers prefer, but do not require, food service managers to 
possess bachelor's degrees in specific fields of study. The Handbook also notes that many employers fill 
management positions by promoting experienced staff or related personnel. 
As previously stated, CIS interprets the term "degree" in the criteria at 8 C.F.R. tj 214.2(h)(4)(iii)(A) to mean 
not just any bachelor's or higher degree, but one which is in a spec* specialty that is directly related to the 
proposed position. In the September 13, 2004 company support letter, the petitioner did not state that it has a 
specific degree requirement for the proposed positions. Instead, the petitioner stated that in "this industry, a 
bachelor's degree is a virtual prerequisite for most employers." The petitioner indicated that other employers 
in the industry preferred, but did not require, a bachelor's degree in a specific specialty, namely - in restaurant 
or food service management. The petitioner's lack of an educational requirement establishes that the 
proposed position does not qualify as a specialty occupation. The fact that some employers require a 
bachelor's degree in food service management is not enough to establish that the proposed position itself is a 
specialty occupation. As indicated in the precedent decision Matter of Michael Hertz Assocs., 19 I&N Dec. 
558, 560 (Comm. l988), for a position to qualify as a specialty occupation: 
A petitioner must establish that the position realistically requires knowledge, both theoretical 
and applied, which is almost exclusively obtained through studies at an institution of higher 
learning. The depth of knowledge and length of studies required are best typified by a degree 
granted by such institution at the baccalaureate level. It must be demonstrated that the 
position requires a precise and speclfic course of study which relates directly and closely to 
the position in question. Since there must be a close corollary between the required 
specialized studies and the position, the requirement of a degree of generalized title, such as 
business administration or liberal arts, without further specification, does not establish 
eligibility. (Emphasis added.) 
In accordance with the decision in Matter of Michael Hertz Assocs., the petitioner establishes none of the 
criteria under 8 C.F.R. tj 214.2(h)(4)(iii)(A) because it appears to accept any bachelor's degree without 
specification. Additionally, as no specific course of study is required for entry into restaurant manager 
EAC 04 264 50784 
Page 5 
occupations and those without specific bachelor's degrees can be promoted into the positions, the petitioner 
fails to establish that a bachelor's or higher degree in a specific field of study is the normal minimum 
requirement for entry into the proposed position. Thus, the petitioner has failed to establish that the position 
is one that qualifies as a specialty occupation under the criterion at 8 C.F.R. Fj 214.2(h)(4)(iii)(A)(I). 
The petitioner has failed to establish any of the remaining criteria: that a degree requirement is common to 
the industry in parallel positions among similar organizations; that the petitioner normally requires a degree or 
its equivalent for the position; or that 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 bachelor's or higher 
degree. 
The AAO turns to the second alternative prong of the second criterion, which is the criterion that counsel 
contends has been satisfied. A petitioner satisfies the second alternative prong of the second criterion at 
8 C.F.R. Fj 214.2(h)(4)(iii)(A) if it establishes that a particular position is so complex or unique that it can be 
performed only by an individual with a bachelor's degree in a specific field of study. The duties, as described 
by the petitioner, appear to be the typical duties of managers at small restaurants, positions which the 
Handbook indicates do not require a bachelor's degree in a specific field and can be filled by a non-degreed 
individual who gets promoted from within based on experience. Counsel asserts that the petitioner' high 
standards for food and health establish that the proposed duties can only be performed by someone with a 
bachelor's degree. Again, counsel does not indicate that the degree need be in a specific area of study. Counsel's 
assertions are not supported by any document in the record. 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)). In addition, 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). 
No evidence contained in the record demonstrates that the proposed position is a specialty occupation. The 
petitioner has not overcome the decision and the director's decision is upheld. 
The burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. Fj 136 1. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.