dismissed H-1B Case: Food Service Management

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 0 15 50 12 1 Office: CALIFORNIA SERVICE CENTER 
 date'^ 1 8 2006 
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. 1 10 1 (a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
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Page 2 
DISCUSSION: The 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 an Indian restaurant that seeks to employ the beneficiary as its "director for food 
management operational services." The petitioner, therefore, endeavors to classify the beneficiary as a 
nonirnmigrant worker in a specialty occupation pursuant to section 10 1 (a)( 1 S)(H)(i)(b) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. 9 1 10 1 (a)(l S)(H)(i)(b). 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
The director denied the petition on the basis that the petitioner had failed to establish that the proposed 
position qualifies for classification as a specialty occupation. 
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 8 214.2(h)(4)(ii) as: 
[A]n 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. 8 214.2(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 
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(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 baccalaureate or higher degree, but one in a specific specialty 
that is directly related to the proposed position. 
In its October 7, 2003 letter of support, the petitioner stated that the beneficiary would be responsible for the 
supervision and coordination of the petitioner's catering and food service department; formulate long-range 
research and development goals and objectives; plan and execute quality control standards; review executive 
menus; analyze recipes; determine cost of operations and assign prices; develop and ensure proper handling 
of policies and procedures for executive kitchen practices; and hire and fire employees as necessary to 
develop and implement policies in the department. The petitioner also stated that the beneficiary would be in 
charge of the business management of the restaurant, utilizing his food and hospitality management 
knowledge and techniques. He would also be responsible for the food service department, ensuring that the 
quality control and nutritional standards of food preparation are met. The beneficiary would also be 
responsible for reviewing budgets and expenditure reports to monitor the costs and the implementation of 
short- and long-term policies. The beneficiary would likewise be responsible for the management of the 
department's administration. He would create, develop, and supervise the coordination of food handling to 
ensure its proper handling, and be in charge of the codification of new projects for the billing system. The 
petitioner stated that the beneficiary would also research and formulate long range and development goals 
and objectives and plan and execute quality control standards and menus for banquets and catering services. 
On appeal, counsel contends that the director erred in denying the petition, and that the proposed position 
qualifies for classification as a specialty occupation. 
In determining whether a proposed 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 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations.' 
In its discussion of the duties of food service managers, the Handbook states the following: 
' While not raised on appeal, the AAO notes that in its RFE response, the petitioner submitted the Dictionaly of 
Occupational Title's (DOT) Standard Vocational Preparation (SVP) rating for this position as evidence that a 
baccalaureate or higher degree or its equivalent is required for entry into the position. The DOT is not a persuasive 
source of information regarding whether a particular job requires the attainment of a baccalaureate or higher degree 
in a specific specialty, or its equivalent, 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. It does not 
describe how those years are to be divided among training, formal education, and experience, and it does not specify 
the particular type of degree, if any, that a position would require. As such, the AAO accords no weight to this 
information. 
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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 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. 
In that the duties of a food service manager as discussed in the Handbook are closely aligned to those of 
the proposed position as set forth in the petition, the AAO next turns to the Handbook's discussion of the 
educational qualifications required for entry into the field. 
In its discussion of the educational requirements for food service managers, the Handbook offers the 
following information: 
Most food service management companies and national or regional restaurant chains 
recruit management trainees from 2- and 4-year college hospitality management 
programs. 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 interest and aptitude. Some 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. 
A bachelor's degree in restaurant and food service management provides particularly 
strong preparation for a career in this occupation. A number of colleges and universities 
offer 4-year programs in restaurant and hotel management or institutional food service 
management. For those not interested in pursuing a 4-year degree, community and junior 
colleges, technical institutes, and other institutions offer programs in the field leading to 
an associate degree or other formal certification. Both 2- and 4-year programs provide 
instruction in subjects such as nutrition, sanitation, and food planning and preparation, as 
well as accounting, business law and management, and computer science. Some 
programs combine classroom and laboratory study with internships providing on-the-job 
experience. In addition, many educational institutions offer culinary programs in food 
preparation. Such training can lead to a career as a cook or chef and provide a foundation 
for advancement to an executive chef position. 
Thus, the Handbook explains unequivocally that a bachelor's degree is not the normal minimum 
requirement for entry into the proposed position, and its findings do not support the assertion that a 
bachelor's degree is required for entry. The statement that a bachelor's degree provides "particularly 
strong preparation" for a position or that employers "prefer" to hire candidates with such a degree is not 
synonymous with the "normally required" standard imposed by the regulation. 
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Therefore, the proposed position does not qualify as a specialty occupation under 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A)(l). 
Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
tj 214.2(hX4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. The AAO has 
reviewed the job postings submitted by the petitioner. However, the petitioner has failed to consider the 
specific requirements at 8 C.F.R. § 214.2(h)(4XiiiXA)(2) for establishing a baccalaureate or higher degree as 
an industry norm. To meet the burden of proof imposed by the regulatory language, a petitioner must 
establish that its degree requirement exists in parallel positions among similar organizations. 
Fantasy Springs Resort is a Native American casino. The Hilton Cleveland South and Hilton Parsippany 
are hotels. The Biltmore Estate is a large, historic mansion and tourist attraction. UniversalCityWalk is 
an attraction that combines restaurants, retail, and entertainment. There is no evidence in the record to 
establish that these companies are similar in size or scope of operations to the petitioner. 
The Cheesecake Factory, Panda Express, and Houlihan's are restaurants, and CA1 Services is in the food 
service industry. However, there is no evidence in the record to indicate that the petitioner's operations 
are similar in size or scope of operations to either company. For example, the AAO notes that The 
Cheesecake Factory operates 75 restaurants, and Panda Express is the largest Chinese food service 
provider in the United States. 
These postings do not verify that there is an industry-wide requirement for a degree in a specialty. The 
first job posting from T.G.I. Friday's does not state that a bachelor's degree in a specific specialty is 
required. As noted previously, CIS interprets the term "degree" to mean not just any in any field, but one 
in a specijic specialty that is directly related to the proposed position. When a range of degrees, e.g., the 
liberal arts, or a degree of generalized title without further specification, e.g., business administration, can 
qualify a worker to perform a job, the proposed position does not qualify as a specialty occupation. See 
Matter of Michael Hertz Associates, 1 9 I&N Dec. 55 8 (Comm. 198 8). 
Moreover, the first job posting from T.G.I. Friday's does not state that a degree is required. Rather, it 
simply states that a degree is "preferred." As noted previously, the fact that an employer may "prefer" to 
hire candidates with a degree is not synonymous with the "normally required" standard imposed by the 
regulation. 
The second posting fiom T.G.I. Friday's only states that a degree is "beneficial." In similar veins, the 
postings from Moose, Inc. and Eurest Dining Services only state that degrees are "preferred." 
The unnamed company advertising its vacancy through Elias Associates, Inc. "prefers" a 2- or 4-year 
degree. Sodexho requires a 2-year degree. The Hilton Cleveland South would find acceptable a 
candidate with a 2-, 3-, or 4-year degree, and the Hilton Parsippany would accept experience in lieu of a 
degree. U.S. Foodservice would also accept experience in lieu of a degree. The Biltmore Estate only 
"prefers" that a candidate's degree be in a specific area. 
The job posting from Aqua does not state that a degree is required. 
Finally, although they require a bachelor's degree, Pat & Oscar's, the first posting from 
UniversalCityWalk, Aramark, LatinosForHire, and the unnamed bakery advertising its vacancy through 
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Monster.com do not require that the degree be in a specific area of study. The second job posting from 
UniversalCityWalk states that experience would be accepted in lieu of a degree. The third job posting 
from UniversalCityWalk only states that a degree is "preferred." 
The vacant position advertised by Yum! Brands, Inc. (Senior Directormice President, Operations, 
CaribLA) is not "parallel" to the proposed position. The position at Yum! involves managing over 700 
restaurants in over 25 countries in the company's Caribbean and Latin American units. A great deal of 
the position's time involves international travel. Also, a master's degree is required. 
As such, the petitioner has not demonstrated that its degree requirement exists in parallel positions among 
similar organizations. 
The AAO also concludes that the record does not establish that the proposed position is a specialty 
occupation under the second prong of 8 C.F.R. 8 214.2(h)(4)(iii)(A)(2), which requires a showing that the 
position is so complex or unique that it can only be performed by an individual with a degree. It finds no 
evidence that would support such a finding, as the position proposed in the petition is very similar to the 
food service manager position described in the Handbook. 
Accordingly, the petitioner has not established its proposed position as a specialty occupation under either 
prong of 8 C.F.R. $ 2 14.2(h)(4)(iii)(A)(2). 
The AAO next turns to the criterion at 8 C.F.R. 4 214.2(h)(4)(iii)(A)(3), which requires that the petitioner 
demonstrate that it normally requires a degree or its equivalent for the position. To determine a 
petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including the names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
In its RFE response, the petitioner noted that this is a newly-formed company and that it has not yet 
started operations. Therefore, it has never before filled this position. Thus, the third criterion of 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(A) cannot be satisfied. 
The fourth criterion, 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4), requires the petitioner to establish that the nature of 
the proposed position's 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 in the specialty occupation. 
The petitioner contends that the proposed position is more complex than such positions at other, similar 
organizations. In its RFE response the petitioner stated that "Indian food is one of the most difficult foods 
to prepare because of the mixture of different spices and ingredients to produce the desire[d] taste and 
texture and for the methods utilized in cooking." While preparing Indian food may involve a great deal of 
knowledge and preparation, the evidence of record does not establish that performance of the associated 
duties requires knowledge that is usually associated with attainment of a bachelor's degree in a specific 
specialty. 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 Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
To the extent they are described in the record, the duties of the proposed position do not support a 
conclusion that they would require the beneficiary to possess at least a bachelor's degree level of 
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knowledge in a specific specialty. Therefore, the proposed position does not qualify as a specialty 
occupation under the fourth criterion. 
The proposed position does not qualify for classification as a specialty occupation under any of the four 
criteria set forth at 8 C.F.R. §$ 214.2(h)(4)(iii)(A)(l), (2)' (3)' and (4), and the petition was properly 
denied. As the proposed position is not a specialty occupation, the beneficiary's qualifications to perform 
its duties are immaterial. Accordingly, the AAO will 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. 
136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.