dismissed H-1B Case: Hospitality Management

identiwing data deleted to 
prevent olearly unwarmnted 
in~asioa of per~nal pivaoy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 199 52 172 Office: TEXAS SERVICE CENTER Date: JUN 1 5 2006 
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. § 1 10 l(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 04 199 52172 
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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 private country club and seeks to employ the beneficiary as a service director. The petitioner 
endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 
10 l(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 l(a)(l S)(H)(i)(b). 
The director denied the petition because the position did not qualify as a specialty occupation. On appeal, counsel 
submits a brief and additional information stating that the proffered position is 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. 5 I 101 (a)(l S)(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. § 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. 5 214.2(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. 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; 
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(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. 
5 214.2(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 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 service 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. The duties set forth in the petitioner's response to the director's request for evidence, however, will 
not be considered as those duties significantly changed the nature of the position. In the petitioner's support 
letter of July 1, 2004, the duties to be performed by the beneficiary were defined as follows: 
Plan and organize recreational activities and create a friendly atmosphere for club members; 
Greet new arrivals, introduce them to other members, acquaint them with recreation facilities, 
and encourage them to participate in group activities; 
Ascertain interests of groups and evaluate available equipment and facilities to plan activities; 
May assist management in resolving guests' complaints; 
Serve as liaison between the service staff and management; and 
Assist in analyzing business needs in order to make improvements and organize new 
programs. 
According to the evidence set forth in the petitioner's response to the director's request for evidence, the 
beneficiary would: 
Set the complete service component payroll of the Timarron Country Club and be responsible 
for the recruitment, retention, supervision, development, and training of all service personnel; 
Develop and implement sales programs for employee partners, and assume a high level of 
responsibility directly related to the petitioner's budget control, which, in addition to cost and 
labor controls, includes all revenues and expenses of the Food and Beverage operations; 
SRC 04 199 521 72 
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Utilize labor forecasts and management systems to optimize service levels while maintaining 
the petitioner's financial goals and objectives; 
Collaborate with the Private Event Director and Member Relations Director to anticipate and 
strategize appropriate staffing levels suitable for event and member requirements; 
Manage, modify and incorporate the promotion of the petitioner's social activities and 
various service oriented events with the petitioner's service personnel; 
Outline, develop, manage and implement training programs to service personnel, and hire, 
develop and discipline all service personnel in compliance with the petitioner's procedures; 
Organize and conduct weekly service training meetings for all service personnel and, as 
needed, provide special training sessions to assist in special events requiring unique, 
customer/client demands and expectations; 
Work directly with the Food and Beverage Manager and Club Manager and supervise all 
captains and service personnel; 
Inspect and review all service tickets and transactions to ensure proper and accurate accounts 
receivable, and, in collaboration with the Club Manager, review and manage the wine 
expense benchmarks for the food and beverage plan; and 
Supervise and review the assignment of service personnel and, as needed, implement 
modifications in order to meet the petitioner's service needs. 
The purpose of a request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). When responding to a request for evidence, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title or its 
associated job responsibilities. The petitioner must establish that the position that was offered to the 
beneficiary at the time the I- 129 petition was filed is a specialty occupation. See Matter of Michelin Tire, 17 
I&N Dec. 248, 249 (Reg. Comm. 1978). If significant changes are made to the initial request for approval, 
the petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts 
in the record. The duties assigned to the beneficiary in the petitioner's response to the director's request for 
evidence materially changed the nature of the position offered to the beneficiary. Initially, the beneficiary 
was only to: plan and organize recreational activities; create a friendly club atmosphere; greet new arrivals 
and introduce them to other members; acquaint new arrivals with the club's recreational facilities and 
encourage participation in group activities; plan group activities consistent with the club's facilities; solve 
member complaints; and assist in making club improvements and organizing new programs. Under the duties 
to be performed as set forth in the response to the request for evidence, the beneficiary's duties were 
substantially changed so that the beneficiary would now: set the beneficiary's complete service component 
payroll; be responsible for service employee recruitment, retention, supervision, development and training; 
develop and implement sales programs for employee partners and assume a high level of control for the 
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petitioner's budget, including all revenues and expenses for food and beverage operations; maintain 
appropriate staffing levels for club events; supervise all captains and service personnel; and inspect and 
review all service tickets for accuracy. These duties were not included in the duties the beneficiary was to 
perform when the petition was filed, and actually represent a new position. As such, they may not be 
considered and the position will be evaluated based on the duties detailed with the initial filing of the petition. 
The petitioner requires a minimum of a bachelor's degree in business management or business administration 
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)). 
Upon review of the record, the petitioner has failed to establish that the proffered position qualifies as a 
specialty occupation. The AAO routinely consults the Department of Labor's Occupational Outlook 
Handbook (Handbook) for information about the duties and educational requirements of particular 
occupations. The duties of the proffered position are essentially those noted for general managerial positions 
in a service industry. The Handbook does not require a degree in a specific specialty for entry into this type 
of position. For example, a degree in a specific specialty is not required for operations managers, general 
managers, convention services managers, or food and beverage managers. These type positions are regularly 
filled by individuals with a wide range of educational backgrounds, and by individuals who do not hold a 
baccalaureate level education. It is apparent from the Handbook that a baccalaureate or higher degree, in a 
specific specialty, is not the minimum requirement for entry into the proffered position. Positions requiring a 
college degree are filled from a wide range of educational disciplines. A degree in a specific specialty, 
however, is not required. The petitioner has failed to establish the first criterion of 8 C.F.R. 
fj 2 14.2(h)(4)(iii)(A). 
The petitioner has also failed to establish that a degree requirement, in a specific specialty, is common to the 
industry in parallel positions among similar organizations, or that it normally requires a degree in a specific 
specialty for entry into the position, and offers no evidence in this regard. The petitioner has, therefore, failed 
to establish the referenced criteria at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(2) or (3). 
Finally, the duties to be performed by the beneficiary are not so specialized or complex that knowledge 
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a 
specific specialty. Nor are the duties so complex or unique that they can be performed only by an individual 
with a degree in a specific specialty. The duties appear to be routine for the position in the industry and 
regularly performed by individuals with a wide range of education in a number of different disciplines. The 
petitioner states that the proffered position requires a baccalaureate level education in a specific specialty 
SRC 04 199 52172 
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because the duties of the position have changed with the petitioner's expanding business functions. The 
petitioner did not, however, provide evidence of any expanded business functions. 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, any increase in the complexity of the duties to be 
performed as set forth in the petitioner's response to the director's request for evidence cannot be considered 
as those duties create a new position, and that position is not the same as originally petitioned. As previously 
noted, if the petitioner wishes to obtain H-1B approval for the beneficiary under those duties, it must file a 
new petition. 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 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 failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.