dismissed H-1B Case: Hospitality Management

iden- data deleted to 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
/ 
PUBLIC COPY 
FILE: WAC 04 059 50428 Office: CALIFORNIA SERVICE CENTER Date: OCT 1 7 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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 04 059 50428 
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 an inn and spalresort and seeks to employ the beneficiary as a purchasing director. The 
petitioner endeavors to classify the beneficiary 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. 5 1 101(a)(1 S)(H)(i)(b). 
The director denied the petition because the proffered position does not qualify as a specialty occupation. On 
appeal, counsel submits a brief and additional information stating that the offered position qualifies as a specialty 
occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section 10 l(a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 9 1 101 (a)(l 5)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 11 84(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. 9 214.2(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. 5 214.2(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; 
WAC 04 059 50428 
Page 3 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are 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. 
5 2 14.2(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) the 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) the Form I-290B with supporting documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a purchasing director. Evidence of the beneficiary's 
duties includes the Form 1-129 petition with attachment and the petitioner's response to the director's request 
for evidence. According to this evidence the beneficiary would: 
Be responsible for resort wide purchasing and receiving procedures; 
Establish supplier relationships and supply sources for all products; 
Ensure product delivery, quality and pricing in accordance with supplier agreements; 
Establish systems to monitor vendor performance and adherence to pricing and delivery standards; 
Implement quality control and monitoring programs; 
Establish, implement and maintain organizational structures and staffing to maintain high qualitylcost 
effective service and product delivery; 
Interact with department heads to target areas of opportunity for costlproduct improvement; 
Review major procurement contracts; 
Coordinate contract compliance, change orders and problem resolution; 
Establish and maintain an effective audit function with accounting to maintain departmental and 
record integrity; and 
Supervise a staff of seven employees. 
WAC 04 059 50428 
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The duties of the proffered position were further described in the petitioner's response to the director's 
request for evidence. The petitioner requires a minimum of a bachelor's degree in Catering and Hotel 
Management, or business and/or CPM designation for entry into the proffered position. 
Upon review of the record, the petitioner has failed to establish that a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the offered position, or that a degree 
requirement is common to the industry in parallel positions among similar organizations, as asserted by the 
petitioner. Factors often considered by CIS when determining these criteria include: whether the Department 
of Labor's Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether 
an industry 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 Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for information about the duties and educational requirements of 
particular occupations. The duties of the proffered position are essentially those noted for buyers or 
purchasing managers, and are described in the Handbook, 2004-05 edition at p. 61, as follows: 
Purchasing managers, buyers and purchasing agents seek to obtain the highest quality 
merchandise at the lowest possible purchase cost for their employers. In general, purchasers 
buy goods and services for their company or organization, whereas buyers typically buy 
items for resale. Purchasers and buyers determine which commodities or services are best, 
choose the suppliers of the product or service, negotiate the lowest price, and award contracts 
that ensure that the correct amount of the product or service is received at the appropriate 
time. In order to accomplish these tasks successfully, purchasing managers, buyers, and 
purchasing agents study sales records and inventory levels of current stock, identify foreign 
and domestic suppliers, and keep abreast of changes affecting both the supply of and demand 
for needed products and materials. 
Purchasing managers, buyers, and purchasing agents evaluate suppliers on the basis of 
price, quality, service support, availability, reliability, and selection. . . . They research the 
reputation and history of the suppliers and may advertise anticipated purchase actions in order 
to solicit bids. . . . 
Experienced buyers may advance by moving to a department that manages a larger 
volume or by becoming a merchandise manager. Others may go to work in sales for a 
manufacturer or wholesaler. 
An experienced purchasing agent or buyer may become an assistant purchasing manager 
in charge of a group of purchasing professionals before advancing to purchasing manager, 
supply manager, or director of materials management. At the top levels, duties may overlap 
with other management functions, such as production, planning, logistics, and marketing. 
WAC 04 059 50428 
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The duties associated with the proffered position are essentially those listed above. The Handbook notes that 
qualified individuals for purchasing managers, buyers and purchasing agents positions may begin as trainees, 
purchasing clerks, expediters, junior buyers, or assistant buyers. Retail and wholesale firms prefer to hire 
applicants with a college degree and familiarity with the products they sell, as well as wholesale and retail 
practices. It is also noted, however, that some retail firms promote qualified employees to assistant buyer 
positions, while others recruit and train college graduates. Most employers use a combination of methods for 
filling these positions. Id. at 62. Educational requirements tend to vary with the size of the organization. 
Large stores and distributors prefer applicants who have completed a bachelor's degree program with a 
business emphasis, and many manufacturing firms put a greater emphasis on formal training, preferring 
applicants with a bachelor's or master's degree in engineering, business, economics, or one of the applied 
sciences. The fact remains, however, that while some employers prefer applicants with a bachelor's degree, a 
degree requirement in a specific specialty is not the minimum requirement for entry into the offered position. 
Many employers still fill buyer positions by promoting experienced employees who qualify for the position 
through work experience and training rather than a bachelor's level education in a specific specialty. The 
petitioner has failed to satisfy the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(l). 
The petitioner contends that a degree in a specific specialty is common for the position in the industry in 
parallel positions among similar organizations. In support of that assertion, the petitioner submitted copies of 
five job advertisements. Three of the advertisements are from hotels/resorts and are for purchasing 
managertdirector positions. Two of those advertisements indicate that a bachelor's degree is required, but do 
not state that the degree need be in any particular discipline. The third (Seminole Hard Rock Hotel & Casino) 
requires a bachelor's degree in business or a related field. The remaining two advertisements submitted are 
not from similar organizations to that of the petitioner. One indicates simply that a bachelor's degree is 
required but does not require a degree in a specifid specialty. The final advertisement is for a director of 
purchasing and estimating for a residential construction firm that requires a bachelor's degree in business. 
The advertisements submitted do not establish that a degree in a specific specialty is common for the position - 
in the industry. four statements in suppoi of this proposition: - 
esources; PrincipaltOwner of a consultin firm in the 
hospitality industry; President of the California Chefs Association; and R 
Managing Director of the Bernardus Lodge. The substance of those statements may be summarized as 
follows: 
1. states that, based on his experience in the industry, a bachelor's 
degree in the specialty of Hotel & Restaurant Management is a minimum requirement for the 
proffered position. 
2. -states that, based on her experience in the industry, a bachelor's 
degree in the specialty of hotel management is required for entry into the proffered position; 
3. - an executive chef, states that, based on his experience in the industry, 
an individual must possess a minimum of a bachelor's degree in business, hospitality or a related 
field to successfully perform the duties of the proffered position. 
WAC 04 059 50428 
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4. states that his organization is currently implementing a central 
purchasing department, and that the organization requires a college education in a related field for its 
Director of Purchasing. 
None of the statements provide a basis for the opinions rendered, such as an industrytlabor survey or study. 
Furthermore, the opinions are contrary to the findings of the Handbook for the educational requirements of 
similar positions in the nation. Citizenship and Immigration Services (CIS) may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. However, where an opinion in not in accord 
with other information or is in any way questionable, CIS is not required to accept or may give less weight to 
that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). The submitted opinions 
shall, accordingly, be given little weight. The petitioner has failed to establish the referenced criterion at 8 
C .F.R. 5 2 14.2(h)(4)(iii)(A)(2). 
The petitioner contends that it normally requires a degree for the proffered position. In support of that 
assertion the petitioner stated that its previous Director of Purchasing had the equivalent of a bachelor's 
degree with over 20 years of experience in related fields. The petitioner did not, however, provide any 
corroborating evidence to establish that assertion, such as a copy of the former employee's degree or an 
equivalency evaluation of his experience. Simply going on the 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 190 (Reg. 
Comm. 1972)). Further, 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 or 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 ~ct.' To interpret the regulations any other way would lead to absurd 
results: if CIS were limited to reviewing a petitioner's self-imposed employment requirements, then any alien 
with a bachelor's degree could be brought into the United States to perform menial, non-professional, or an 
otherwise non-specialty occupation, so long as the employer required all such employees to have 
baccalaureate or higher degrees. See id at 388. The petitioner has failed to establish the criterion at 8 C.F.R. 
fj 2 14.2(h)(4)(iii)(A)(3). 
Finally, the petitioner has not established that the duties of the proffered position are so specialized and 
complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate 
or higher degree in a specific specialty, or that they are so complex or unique that they can only be performed 
by an individual with a degree in a specific specialty. The duties to be performed by the beneficiary are 
routine in the industry for the offered position. The petitioner has failed to establish the referenced criteria at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) or (4). 
' The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
WAC 04 059 50428 
Page 7 
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. 8 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.