dismissed H-1B Case: Hospitality

iL1.S. Department of Homeland Security 
20 Mass. Ave. N.W.. Rrr. A3042 
Wash~ngton, 3C 20529 
U.S. Citizenship 
and Immigration 
FILE: ILDJ 04 245 52121 1 Office: NEBRASKA SERVICE CENTER Date: li.~ i\ 8 2735 Jbo 
PETITION: Petitzon for a Non~mm ant Worker Pursgant to sectlaq 10l(a)(H)(l)(b) of the Imm:graQnona 
ad Natlonallty Act, 8 S.C. 5 I 10i(a)(15)(H)(1)@) 
ON BEHALF OF PETITIONER: I 
This is the dec~s:oa of the Appeals Office zr, your case. All documerzts have been returned to 
the office that orngmnal!y Any further lnqurry mist be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LEV 04 245 52121 
Page 2 
DISCUSSION: The sewnce center dnrector denied the nonnrnmagrant visa petnhon ar,d the ns now 
before the Admnn1s3al;ve Appeals Office (AAO) on appeal. The eppea? wall be disrrlssed. The petnt~on wnll 
3e denred. 
The pet~tnoner 1s 2 cocoratnon engaged :n tke hotel busmess. in order to employ the 'Jeneficaary as nts general 
nanager, the pektnoner eladeavors to classl& the beneficrary as a nonnmlgant worker m a specialty occu?ataon 
pzars~ant to section IOl(a)(l5)(H)(1)(b) of the Imnigratnon and Natnonality Act (the Act), 8 U.S.C. 5 
1 10 1 Ca)(l 5QdW(lb(b). 
The director denled the petnt~on om the basis that the petitloner had faded to establish that t3e profked 
pos~taon meets the definabon of a specaally o66Jpailor set forth at 8 C.F.R. 8 2:4.2(h)(4)(nn)(A). 
On appeal, counsel cocternds that the darector9s decns~on d~s~egarded evaderce submlttea by the petitloner "cat 
con&ms that a hotel manager ns a specialty occupatron. In paA~cular, counsel asserts that the d~rector erred by: 
(1) d~sregardmg the Ad~udicator's EieM Manual crtat~on to Matter of Sun, 12 I&N Dee. 535 (D.D. 1966) as 
establash112g hotel manager as a specialty occ~patron; (2) not explainmg how he ark$; at the conclusim that the 
dutres of the proffered pos~tnor do rot appear to be so cornpiex and specnalnzed as % oequlre a baccalaueate 
degree m 4e hosp~ta;rty or management fields; and (3) not accepting the job vacancy advertnsements of ot;m 
employers as estabhshang that the enployers ~n the pet~t~oner's nndustry nomally reqwe a baccalxaeate or 
higher degree for the proffixed posntion. 
ne darector's dec~snon to de~y the petrt~on ns coxect. The A40 bases fins decns~on upon ~ls revaew of the 
enlarc record, nncl-admg. (1) the petitsoner's Fonn 1-129 and suppoxtang documentatnon; (2) the dlrec:or5s 
req~est for addntaonal evndence (WE); (3) the materials submrtted nn response lo the WE; (4) the dnrector's 
dennal letter; and (5) the Form I-290B, counsei's braef, and :he documentatnon submtted w~th the br;ef, 
Qamely: the cover sheet and two pages of the February 280lFreedon of Infomation Act versron of tile INS 
A&udicator's F~eld Manual, publashed by the Amer~can Imanagretaor, Lavers Assoc~ation; the five-page 
memorandum horn the Department of State's Bmeau of ConsuHa, Affa~rs entrtled 'TTN VISAS. B~ofessronals 
Under NMTA"; and the sectron on hotel a~d motel managers from the Depament of Labor's (DO%) 
Dactionary of Occupational Titles (DOT). 
$ect;on BOl(a)(l5)(H)b)(b) of the Act, 8 U.S.C. 5 1 101 (a)(15)(H)(l)(b), pzov~des a nonrmm~ga~at 
classnficatnon for aliens who are commg "lmporarly to the Um~ted States to perfom services nn a specralty 
occxpat~on. 
Section 214(i)(l) of the Act, 8 U.S.C. 8 B184(1)(1), defines the tern "specialty occuption" as 2n occupation 
that requires: 
(A) theoretcal and pract~caP application of a body of highly speciahzed  owle edge, 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. 
KIN04245 52121 
Page 3 
Th~s, ~t :s clear that Congress Intended thas vnsa ~Passaficat~on only for aliens who are to be employed in al; 
occupataon :hat requires the theoretical and practical applrcat~on sf a body of highly spec~ainzed howledge 
that IS conveyed by at leas: a baccalaureate or hlgher degree nla a specific specnalty. 
Consonant with sechon 214(i)(l) of th Act, the regulatntron at 8 C.F.R. $ 214.2(h)(4.)(ni) states tiat a specialty 
occupatnon means an occupation: 
\Nhach [I] requlres theoretical and practical application of a boa) of heghly speaalzzed 
knowledge an fields of human endezvor mcludr~g, but no":%amted to, architectme, engmeering, 
mathemalcs, physrcal sciamces, socnal sciences, nraed~cmne a~d health, educatnoc, beasmess 
s?ec;altles, accomtmg, law, theology, and the arts, wd w'a~ch 121 requlres the attainment ofa 
bac~zlaelor's degree or higher in a specific specialty, or nts eq~nvalent, as a mmamurn r"or enhy lnto 
the occupztnor. an the Unnted States. (Htahcs added.) 
P~rsuant to 8 C.F.R. 8 214,2(l^i)(4)(iil)(Pag, to qualify as a specialty occ~patim, the position must meet one of the 
follow~ng cntma: 
(1) A baccalaureate or higher degree or its equ-rnvaient rs nomally the minimum requirement 
fo: entry into the particular pos~tionz; 
2) The degree requirement is cormon to the iindus&y ~n parallel positions among similar 
organizations or, in the altematlve, an employer may show that its particulx posifion is 
so coimplex or unique that it cz: be performed mly by an indiwdual with a degree; 
(3) Tne employer normally requires a degree or its equivalent for the position; or 
44) The nature ofthe specific duties is so specialized and complex feat howledge ~equmred 
to perfom the duties is usually associated with the attainment of a baccalaureate 01- 
hngner degree. 
C~t~zensh~p and Immlgratnon Selvnces (CIS) has consrstently nnterpreted the tern "degree9' :n t5e crrtelaa at 
8 C.F.R. $ 214.2(h)(4)(nn)(A) to mean not just any baccalaureate or hgher degree, bd one nn a speclfic 
specialty that IS darectly related to the proffered posltlon. Appiymg thns standa~d, CIS rep8arly zpproves 
H-BE? petntaocs for qualified al~ens who are to be empioyed as engmeers, coimputer scnenzt~sts, cednfied p~blrc 
accountants, college professors, and otker such professions. These occupat~ons all requlne a baccala~reate 
degree nn tae specnfic specialty as a man~murn for entry Into tke occuptao~ and fanrly represent the types of 
professnons that Congress contem?lated when 11 created the H-1B visa category. 
h :he letter of support filed with the Form 1-129, the petitioner's president described the petitioner's business 
and the profkred position as follows: 
[The pet~tioner] ns located in the metropolltan Ch~cago area. Wrth 166 rooms, a restaurant 
m-srte, room service, outdoor pool, meetng rooms, and many m-room arnenrties, ouz hotel as 
LlN 04 245 52121 
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dedicated to customer servnce. Bn order to provide :he Bevel of servnce we reed a general 
manager. The General Manager manages [the] hotel to ensure effac~ent and prof",ble 
operahon: Establishes standards for personnel admlnlstratlon and perfomance, seavice to 
patrons, room rates, advertlsnng, pubhcity, credat, food selectlor, arid servnce, 2nd type of 
patronage to be sol~cited. Plans danarng room, bar, and banquet operatsons. Aliocates funds, 
authorizes expend~tures, and assasts ;n plannlng budgets for depaments. hteav~ews, hares, 
and evaluates personnel. Answers patro?s7 compla~~ts ard resolves -~robBems. Delegates 
a~thorlty and asslgr-LS responsabaltt~es to department heads. Inspects guests' room, public 
access areas, ard outsade gourds for clean1:ness and appearance. Processes reservat~ons and 
adjusts guests' com2laints The posrtlon requmres a bachelor's degree m a b~snness dascnplme. 
The ev~dence of record does not sat~sfy the cnternon at 8 C.F.R. 5 214.2(h)(Qd>(ian>(A>(l). Thns provasmn 
asslgHls specnalty occupation status to a posrtma w:th a nonnai manamLm entry reqmrement of a baccalaureate 
or hagher degree, or the equ~valent, m a specnfic specialty directly related to the pos~tnon's dutnes. 
The AAO recogmzes the DOL's Occupational Outlook Handbook (Handbook) as m authontatave source oi~ the 
dutnes and educatuonal req~irements of a wde vanety of occupatnons. To :he extent that they are descnbed ma tke 
above excerpt and elsewhere m the recorci, the proposed duties comport wath those of tce lodgnxg manager 
occupat~tnon as descnbed m the 2004-2005 ed~hon of the Handbook. The followaxg excerpt from page 54 of the 
2004-2005 ed~tton of tke Handbook's sectmn on the jodgang managers occupational category estab,ishes that 
locig~vg managers' expioyers do not normally set a baccalaureate or hlgher degree, or :he equivalent, m a 
spec~fic specaa:'ly as a mmlmram en&y requirement: 
Hoteis nncreasnngly emphasaze speclalazed kaanmg. Postsecondary bannnng m hoke8 or 
restaurant management as prefened for :most hotel management pos~taons, although a college 
liberal arts degree may Be s~fficient when co~pled wnth related hotel expenence. Hnternships 
or part-t~me or summer work are an asset to students seeking a career IC hotel rna~agement. 
The expenence gaaned and :he contacts made wath employers can geatly becefit students 
after gaduat~sr. Most bachelor's degree programs mcPude work-study o~portumtnes. 
Communnty co,leges, j~~mor colleges, and some unaversrtdes offer assoc~ate's, bachelor's, and 
gadtlate degree srogams nn hotehor restaurant management. Comoxed wath tech~cal 
mstitutes, vocztlorral and bade schools, and other academic anst~tutaons, over 800 educataonal 
facrlatres have programs leacl~ng to formal recognition m hotel or restaurant management. 
Hote; management programs incPude nrstmction nn hote: admmastratnon, accouxtnng, 
economrcs, ~arketang, housekeepmg, food semce management and cayerang, and hotel 
maantenanace engmeermg. Computer mmnng also 4s an mteg-a1 part of hotel management 
training, due to the widespread use of co~mp~ters nn reservataons, b~lhng, and housekeepnng 
management. 
Addationally, over 450 high schools in 45 States offer the Lodgcg Management Program 
czeated by the Educational krstatute of the Ameracan Hotel axd Eodg~ng Assocaation. Thns ns a 
two-yeas program offered to h~gh school qumors and senlops, which teaches management 
LIP4 04 245 52121 
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p~~nclpnes a2d leads to a p-ofess~onal ce51fication called the "Certnfied Xooms D~v~slon 
Spec~alrst". Many colleges and m~versnt~es gra-nt partleapants cred~t towards a post-secondary 
degree an hotel management. 
Lodgmg maragers must be able to get aiong with many different people, even an stressful 
slhataons. They must be able to solve problem and concentrate on detaals. hatiat~ve, seif- 
d~sc~plme, effect~ve comrnunacakon sk~lls, and the a5:hty to oorgamze an2 dnrect the work of 
others also rre essentra? for managers at all levels. 
h the prst, many maaagers were promoted frorr, the ranks of froaml. desk clel-ks, housekeepers, 
wanters, chefs, and hotel sales workers. Altho~gh some employees stall advance to hote; 
management posat~ons w~thout educat~on beyond h~gh school, postseco~dary educataon IS 
preferred. Restaarant management tra:rrcg or experience also ns a good backgoand for 
entering hotel management, because the success of a hotel's food semnce and beverage 
operatmns often 1s ~mgortmt to the ;7rofita>:Bity of the entire establ~shment. 
The Handbook only reports an employer preference for post-seco~daey kamang. Employer p~eferences do not 
equate :o employers' nomal requarements. Furthermore, a preference for post-secondav traanmg does not equate 
to a preference for a coliege degree or, for that matter, universnty level cousework. As the Handbook notes, 
mnstat~tnons offercg hotel or restaurant maglagernerd comes mclude techlcal anst~tutes and vocat~onal and trade 
schools, as well as comu~~Q, junior, and four-year colkges. 
Counsel's reference to the A+?judtcacetor's Manual c~tatnon of Matter ofSure, 12 I&N Dee. 535 (D.D. 19661, IS not 
persuasnve. Pdatier ofSun rs not controllnag here, as :t was decnded 113 1966 befa-e the enactment of the law an 
1990 deSnnng spec~alty occu2ahon for H-1B vlsa c:zss~ficatao~?. Accordingly, Matter of Sun 'S holdnng tnat a 
hotel management posltlon at a large hotel qualnfned. as a professaon does cot establ~siq t3at posltlon as a 
speenalty occ~patnor. Fufher, Matter ofsun as dlstnnguishable born tne :nstant case: Matier ofsun confined 
Its finding to a hokel ~~;anagemenQos~taon m "a large 3oteP," id. at page 536, accordnng to the Form 1-129 
filed an the present case, the petatloner's hotel has 15 employees and produces a gross annual income of "$1.5 
m~llaoa." It rs also noted that the Adjudzcator 's Manual does not aave the force of .aw or :egula:non. 
The DOT has .attTe rekvance for spec~arty occupatzon detemmatnors. In contrast to Be Handbook, ~t does 
not identafy partacular degrees that employers require for spec~fic occupat~ons. The SpecaGc Vocat~omal 
Preparation (SVP) ratnngs do not estajlash whether a posntaon requnres the m:szrmurn of a bachelor's degree, or 
zts eqmvalent, an a s jeclfic spec~alty. 
Counsel coaaectly states that the DOT assrgns an SVP ratlng of 7 to the occupatnonal category "Manager, 
Wote: or Motel." However, th~s ratlng does raot establrsh that the proffered posltaon IS a specaalty occupa:~on. 
h SVP rat~ng rs neant to nnd~eate only the total number of years of vocat~onal preparat~on req~ired for a 
particular pos~tnoc. It does not descrabe how those years are to be davlded among kannmg, fonnal educatnsn, 
afid experience, avd at does not specify the partncular type of degree, af any, that a pos~t~on woegla requare. 
Thas fact as implncat Ir counsel's explanation of a-a SVP of 7 as "generally reqmnng 2-4 years of college 
preparatlon." (Bnef, at page 1 .) 
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Page 6 
As the petntlon an cpestron is for an H-1B visa, the d~rector was correct to d~scou~t as irrelevaaml the fact that 
the aforement~oned State Department memorandem l~sts Hotel Malaager among the professionals ectn'cled to 
TN wsas under NAFTA. 
As the ev~dence of record does not establlsh the -~roffered pos~tion as one for whnc:a the normal mmn;um 
enky requnrement ns a bacc~Pa~n:ea:e on: hrgkr degree, OH- the eqmvaled, nn a syec~fic spec~alty, the pet~lloner 
has not satnsfied the cntenon at 8 C.F.R. 5 214,2(h)(4)(:n)(A)(I). 
Next, the petitioner has not satisfied either of t?ae two aitemative prongs of 8 C.F.R. $ 214,2(la)(4)(iii)(A)(2). 
The first prong assigns specialty occupation status to positions for which tlae~e is a degee requirement which 
is common to the industny in positions which are both (1) paailel to the proffered position, and (2) located in 
I loner. organizations that are similar to the petit' 
h detminnng whether there IS suck an ~ndustry-wade standard, factors often consldered by CIS nnckde: whe~her 
the Handbook reports that the md.~~try requnes a degee; whetker the mdustry9s professronal assocaataon cas 
made a degree a rn~mnaaum entry reqmreme~t; and whether letters or affidawts from 5ms or andarnduals nn the 
andustry attest that such fims "routmePy employ and recruat only degreehi md~vnduals." See Shanti, Inc. v. Reno, 
36 F. Sapp. 2d 1151, B 145 (D.Mmn. 1999) (qeotnng Hi'rd/Blaker Corg v. &va, 712 F. Supp. 1095, P 402 
(S.D.N.Y. 1989)). 
As already d~scussed, the Handbook does not report that the ~~roffered positlola requnres a degree an a specafic 
specialty. Also, theze are no submass~ons from a~divlduals, other firms, or profess~onal associahons nnn the 
~etrt~mer's andustry. 
htemet job advertisements that the petnboner submntted anto the record do not substantrate &at the proffered 
pos~t~o~ 1s one for whnch the petntnoner's nndushy noma'ly requtllres at Least a bachelor's degee or the eqmdent 
m a spec~fic specnalty. Tqe mfonnatlon about the proffereci posnhon and about the posntnons advert~sed Sy the 
other employers IS too generalized for a cons.;us-aon that the posit~ons are parallel. Furthermore, the four 
advert-ensenerts are not nnd~cat~ve of a common industry reqinirement of at Beast a oachelor's degree nn a specnfic 
spec~alty. Extended Stay henca requlres only a "hw year college degree." Spracghlll Su~tes by Maxot 
specafies only "a BA or equnvalent expenace." The hry Hotels advert~sement requires only a, 'Y Year 
Degree," and Hamah's llkew~se nde~tifies no specific spec~alty an ~ts requ~rerneni for "College degree or 
equnvalen: expenerce .n Hotel Operat~ons." 331s documentary evndence ns consistent 50ih with the 
afar--en-enported mfomation fiom the Handbook and wnth the mfo:mat~on hlghilghted on page 9 of the except 
whnch the pet:t~oner sabrnltted from DOL's Career Guide to Industries :n response lo the WE, to w~t: '"odgmg 
chams have pnman", been htllnng persons with 4-year co;iege degees m the Inbera: arts or other fields." 
The AAO zlso found that the evndence 0,' ~ecord does not qualnfy the proffered pos~tnon ~nder the second 
zltematnve prong of 8 C F W. 5 214.2(h)(4)(11:)(A)(2) Thrs prong prov~des that "an employer may show that 
nts partnc~lar pos~tnon IS so complex or kmqde that il can be performed ody by an md:v~dua' w~tk a degee." 
The evndence of record about the proffered posrt~o~ and ~ts requirements has not establ~shed that the proffeed 
LDd 04 245 52121 
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pos~tnorr IS uxaque ~n comparison to hotel manager pos~tia~s m general, nor has the petitnoner s!now~z that the 
posrt~on 1s more complex than hote! manager posnt~ons nn genera:. As already dnscussed, these posations do 
not nomaliy requnre a degree an a specnfic specialty. 
Next, as thns ns the first tnme that the petnl~oner has proffered the posnhon nn qbesbon, ~t rs unable to promde a 
hnnrg kstory to satisfy the crnteraon at 8 C F.R. 3 214,2(h)(fl)(rna)(A)(3) for posnt~ons for wl~ich the e-nployer 
nomaPPy requzres a aegree or nls eqhalvalent 
Fmally, the evr6ence does not satis@ the criterion at 8 C F.R. 5 214 2(h)(an)(A)(4) - the nature of the specific 
dukes 1s so specaalnzed and complex that howledge reqwred to perfom them ns usually assoc~ated wth the 
aY~:nme.It of a baccalaureate or Lnlgher degree. The ev~dence of record, lamted as ~t 1s to general~zed descnptnoxs 
of the proposed dut~es, does not estabhsh that the duties are more spec~dizd and complex than those 5at should 
be expected nn the hote; management occ~patnom m general, a2 occupt~on for wh~ch the Handbook does rot 
nuzd:cate a degree ma a specific specialty as a normal requirement. 
Because the proffered posit~on does not meet any criterion at 8 C.F.R. 3 214.2(h)(4)(rii)(A3, the A40 sl9all 
not distu~b the director's denral ofthe pet~t~on on the specialty occcpatim ground. 
Parenthetically, the AAO disagrees w~th th~s statement from the closing paragraph of cowsel's b~jefi 
The examiner improperly suggests that the petitioner's size, income a~d scope ax relevant to 
the determination of whether the occupation is a speciaity occupation. 
It ns noted that Matter ofSun, upon wh~ch cornsel partly reines, explicitly noted the snze of the petliboner's 
operat~ons as a factor zn ~ts determina3on on the rner~ts of the petataon. Becarnse a beneficaary's specnfic dubes 
~nd the educatnocal requ~rernents laecessary for ?hear prope: execution depend upon the actuai operat~onal 
reqmrements of a petnt:oner's busnness, naatters suck as "the petrtnoner's snze, nncome, and sccpe" are not 
mn-elevant to adg ~dlcatnon of the spec~alty occupation nssue 
The burden of proof an these proceedings rests solely with the pethone:. Section 291 of the Act, 8 U.S.C. 
$ 1361. The pet~tioner has not sustained hat burden. 
ORDEk Tae appeal is dismissed. The petitio~~ is denied.