dismissed H-1B Case: Hospitality Management

PUBLIC COPY 
U.S. Department of Worncland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 04 063 53926 Office: VERMONT SERVICE CENTER Date: SEP 0 6 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 I(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l (a)(l S)(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, Director 
Administrative Appeals Ofice 
EAC 04 063 53926 
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 pet hotel and spa that seeks to employ the beneficiary as a manager. It endeavors to classifL 
her as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(iXb) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 1 Ol(a)( 1 S)(H)(iXb). 
The director denied the petition because the proffiered position does not qualiFy as a specialty occupation. On 
appeal, petitioner states that the proffered 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 1 0 1 (a)(l 5)(H)(i)(b) of the Act, 8 1J.S.C. 4 I 10 l(a)( l S)(H)(i)(b), provides, in part, for the 
classification of qualified nonirnmigrant 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. 5 t 184(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 tern "specialty occupation" is further defined at 8 C.F.R. 5 214,2(h)(4)(ii) as: 
[A]n occupation which Yequires 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. 4 214.2(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 equivatent 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; 
EAC 04 063 53926 
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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. 
fj 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 manager. 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: 
Direct and coordinate the petitioner's business activities to obtain optimum efficiency and economy 
of operations to maximize profits; 
Plan and implement goals through subordinate administrative personnel; 
Direct and coordinate promotion of services to develop new markets, increase market share, and 
obtain a competitive position in the industry; 
Confer with administrative personnel, and review activities, operations and sales reports to determine 
if changes in operations or programs are required; 
Manage staff, bookkeeping, and customer relations; and 
Use computers to update the company web-site, database, and inventory control system. 
The beneficiary does not state that it requires a bachelor's degree in any particular discipline for entry into the 
proffered position, but finds the beneficiary qualified for the position by virtue of her bachelor's degree in 
business administration with a major in hotel, restaurant and tourism management from the University of 
Denver. 
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 par;alleI positioris among similar organizations. Factors often 
considered by CIS when determining these criteria include: whether the Department of Labor's Occupalionul 
Outlook Handbook (Handbook) reports that the industry requires a degree; whether an industry professional 
EAC 04 063 53926 
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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, 7 12 
F. Supp. 1095, I 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for illformation about the duties and educational requirements of 
particular occupations. The duties of the proffered position, though generally described, are essentially those 
noted for generalloperations managers. The Htmdbook notes that the formal education and experience of 
these managers varies as widely as the nature of their responsibilities. Many have a bachelor's or higher 
degree in business administration or liberal arts, while others obtain their positions by promotion from lower 
level management positions. Thus, it is possitlle to obtain a position as a general or operations manager 
without a college degree by promotion from within the organization based upon performance alone. 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 offered 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. $ 21 4,2(h)(4)(iii)(A). 
The petitioner asserts that a degree requirement is common to the industry in parallel positions among similar 
organizations, but offers no evidence in this regard. 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. 1 58, 1 65 (Cotnm. 1 998) (citing Malter of Treusurr Craj of Cdiforniu, 
14 I&N 190 (Reg. Comm. 1972)). The petitioner has failed to establish the referenced criterion at 8 C.F.R. 
4 2 I 4.2(h)(4)(iii)(A)(2). 
The petitioner has not established that it normally requires a degree in a specific specialty for the proffered 
position, and offers no evidence in this regard as the position is new with the company. The criterion at 
8 C.F.R. 5 2 14.2(h)(4)(iii)(A)(3) has not been established. 
Finally, the petitioner has not established that the duties of the offered position are so complex or unique that 
they can only be performed by an individual with a degree in a specific specialty, or that the duties are 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 sp~:cialty. The duties are routinely performed by general and 
operations managers in the industry with education in a wide range of educational disciplines. The petitioner 
has failed to establish the referenced criteria at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) or (4). 
The petitioner has failed to establish that the offered position meets any of the criteria listed at 8 C.F.R. 
5 214.2(h)(4)(iii)(A). 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. 
$ 1361. The petitioner has not sustained that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.