dismissed H-1B Case: Hospitality Management

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: ' SRC 04 019 50368 Office: TEXAS SERVICE CENTER Date: JUN 0 6 2006 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 
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DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a hotel and resort. It seeks to employ the beneficiary as a restaurant manager and to 
classify him 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 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the grounds that the record failed to establish that the proffered 
position qualifies as a specialty occupation or that the beneficiary qualifies to perform services in a 
specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
As provided in 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: 
(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; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(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. 
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) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of 
decision; and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record 
in its entirety before issuing its decision. 
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In its initial submission, including the Form 1-129 and an accompanying letter, the petitioner described 
itself as a conference center resort located on the grounds of a winery in northern Georgia. The resort 
consists of a conference center with 16 meeting rooms, a 61-seat auditorium, a grand ballroom, more than 
300 guest rooms and suites, four golf courses, and a 200-acre winery on the 3,100 acre property. The 
petitioner states that it was established in 1981, employs over 750 people, and has a gross annual income 
of $32 million. It seeks to hire the beneficiary, at a salary of $28,00O/year, to be the manager of its 
Legends Clubhouse restaurant - a full-service restaurant with a staff of nine that also hosts special events 
and meetings for members and guests. The duties of the position are listed as follows: 
Direct hiring, firing, and assignment of personnel. 
Supervise all food preparation and delivery systems. 
Manage food, labor, and other related costs. 
Respond to customer requirements in a flexible and professional manner. 
Keep aware of current food trends and continuously update and market current menus. 
Demonstrate good communication and supervisory skills. 
Meet performance deadlines. 
Forecast food consumption and maintain accurate records for ordering, inventory, and 
product verification. 
Maintain sufficient staffing and promote good morale. 
The petitioner claims that the minimum educational requirement for the proffered position is a 
baccalaureate degree in management with an emphasis on hotel, restaurant, or tourism management. The 
beneficiary is qualified for the job, the petitioner declares, by virtue of his bachelor of arts degree, with a 
major in international tourism, from the University of National and World Economy in Sofia, Bulgaria. 
According to the report of an academic credentials evaluation service in New York City, the beneficiary's 
education is equivalent to a bachelor's degree in tourism management from an accredited college or 
university in the United States. 
In response to the RFE counsel asserted that it has become the industry standard for large hotel and 
restaurant operations to hire only people with college degrees in the field of hotel and restaurant 
management for restaurant manager positions. Documentation was submitted which, according to 
counsel, demonstrates the foregoing industry standard and shows that the petitioner has a policy of hiring 
college graduates with degrees in management for its restaurant manager positions. 
In her decision the director determined that the evidence of record failed to establish that the proffered 
position qualifies as a specialty occupation under any of the criteria enumerated at 8 C.F.R. 
5 214.2(h)(4)(iii)(A). The director also found that the beneficiary is not qualified to perform the services 
of a specialty occupation because the documentation relating to the beneficiary's degree in Bulgaria and 
its U.S. equivalent failed to establish that the beneficiary's education is equivalent to a baccalaureate 
degree in tourism management, with a concentration in restaurant management, from a U.S. college or 
university. 
On appeal counsel asserts that the evidence of record demonstrates that the proffered position is a 
specialty occupation and that the beneficiary is qualified to perform the services thereof. Counsel refers 
to the petitioner's previously submitted evidence, contends that it was not properly analyzed by the 
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director, and requests that the evidence be reconsidered. Counsel also submits a new letter from the 
petitioner's president declaring that the proffered position requires a bachelor's degree in management 
and indicating that the previous employee in the position held a bachelor's degree in hotel, restaurant, and 
tourism administration. The letter is accompanied by that employee's original application for the position 
which cites his degree. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook) 
as an authoritative source of information about the duties and educational requirements of particular 
occupations. Factors typically considered are whether the Handbook indicates a degree is required by the 
industry; whether the industry's 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 
1151, 1165 (D.Minn. 1999) (quoting HirdBlaker Corp. v. Sava, 764 F.Supp. 1095, 1102 (S.D.N.Y. 
1989)). CIS also analyzes the specific duties and complexity of the position at issue, with the 
Handbook's occupational descriptions as a reference, as well as the petitioner's past hiring practices for 
the position. See Shanti, Inc. v. Reno, id., at 1 165-66. 
Restaurant managers are included in the DOL Handbook's occupational category entitled food service 
managers. The duties of the occupation are described in the Handbook, 2006-07 edition, as follows: 
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. 
With regard to the educational requirements for food service managers, the Handbook, id., states as 
follows: 
Experience in the food services industry, whether as a full-time waiter or waitress or as a 
part-time or seasonal counter attendant, is essential training for a food services manager. 
Many food service management companies and national or regional restaurant chains 
recruit management trainees from two- and four-year college hospitality management 
programs which require internships and real-life experience to graduate. Some 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 experience, interest and aptitude . . . . 
A bachelor's degree in restaurant and food service management provides particularly 
strong preparation for a career in this occupation . . . . For those not interested in pursuing 
a four-year degree, community and junior colleges, technical institutes, and other 
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institutions offer programs in the field leading to an associate degree or other formal 
certification . . . . 
What the Handbook makes clear is that, even if many food service managers have baccalaureate degrees 
in hospitality management, there is ample opportunity to enter the occupation with credentials short of a 
four-year baccalaureate degree in a specific specialty. Accordingly, the restaurant manager position at 
issue in this petition does not meet the first alternative criterion of a specialty occupation, at 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(l), because a baccalaureate or higher degree in a specific specialty is not the normal 
minimum requirement for entry into the position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2), 
counsel cites a letter from the internship coordinator of the University of Tennessee's hotel, restaurant, 
and tourism management program, who declares that its graduates "are routinely recruited by hotels and 
restaurants to fill restaurant management positions throughout the United States" and that "[ilt is a normal 
standard in the hotel and restaurant industry to require for this position a baccalaureate degree, with an 
emphasis in hospitality and/or consumer services." Counsel also cites two similarly worded letters from 
the general manager and the human resources manager of two other hotels with convention center 
facilities in Louisville, Kentucky, who state that they "routinely recruit BA graduates from universities 
who have obtained a bachelor's degree or the equivalent in management to fill our restaurant management 
positions." The letters go on to state that "[ilt is a normal standard in the hotel and restaurant industry to 
require . . . a baccalaureate degree in management . . . with an emphasis on hospitality" for restaurant 
manager positions. Though all three letters indicate that graduates with baccalaureate degrees in 
hospitality management are "routinely recruited" by hotels and restaurants in general, or their companies 
in particular, they do not state that applicants without those credentials are not considered for restaurant 
manager positions. Moreover, none of the letters demonstrates the expertise of the writer to support the 
declaration that it is a "normal standard in the hotel and restaurant industry" to require applicants for 
restaurant manager positions to have a baccalaureate degree specializing in hospitality services. While 
the two hotel managers may be competent to state that their own hotels only hire restaurant managers 
with hospitality management degrees, the record does not show that they have the expertise to make that 
statement for the hotel industry at large. Moreover, the claim that such an industry standard exists with 
respect to the academic requirements of restaurant managers conflicts with the petitioner's own 
management development program, which states that applicants for management positions within the 
company must have a college degree, without specifying that it must be in hospitality management or a 
related field. 
CIS may, in its discretion, use as advisory opinions statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. When an opinion is not accord 
with other information or is in any way questionable, however, CIS is not required to accept or may give 
less weight to that evidence. See Matter of Caron International, Inc., 19 I&N Dec. 791, 795 (Cornm. 
1988). The AAO determines that the foregoing letters from the University of Tennessee and two 
convention hotels are not persuasive evidence that a bachelor's degree requirement in a specific specialty 
is common to the petitioner's industry in parallel positions among similar organizations, as required for 
the proffered position of restaurant manager to qualify as a specialty occupation under the first prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
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Nor does the record establish that the restaurant manager position is so complex or unique that it can only 
be performed by an individual with a baccalaureate degree in hospitality management or a related 
specialty, as required for the position to qualify as a specialty occupation under the second prong of 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
Counsel asserts that the proffered position meets the third alternative criterion of a specialty occupation, 
at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), because the petitioner normally requires a specialty degree for the 
position. Counsel cites the petitioner's management development program as evidence of its specialty 
degree requirement. As previously discussed, however, the management development program states 
only that a college degree is required for applicants seeking management positions in the company. It 
does not state that the degree must be in any specific specialty. It is incumbent upon a petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Attempts to explain or 
reconcile such inconsistencies will not suffice without competent evidence pointing to where the truth 
lies. See Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). Counsel cites letters in the record from the 
petitioner's director of human resources, who states that "we require our restaurant managers to have a 
baccalaureate degree in management," and from its vice president of human resource[s], who states that 
"we routinely recruit B.A. graduates . . . . who have obtained a bachelor's degree or the equivalent in 
management to fill our restaurant manager positions." The second letter, the AAO notes, does not state 
that the petitioner only recruits and hires applicants with baccalaureate degrees in management for its 
restaurant manager positions. A third letter submitted on appeal, from the petitioner's president, states 
that "[wle require our restaurant managers to have the equivalent of a bachelor's degree in hotel, 
restaurant or tourism management." In support of these letters counsel submits the application of an 
individual it asserts was the previous occupant of the position, which states that the applicant has a 
bachelor's degree in hotel, restaurant, and tourism administration. No corroborating evidence has been 
submitted to show that the individual has the claimed degree and was actually hired for the position. 
Counsel also cites previously submitted resumes of three other individuals it asserts the petitioner hired as 
restaurant managers, all of whom state that they have bachelor's degrees in hospitality management. 
Once again, however, there is no corroborating evidence in the record that any of those individuals were 
ever employed by the petitioner, or that they have the claimed degrees. Simply going on record without 
supporting documentation does not satisfy the petitioner's burden of proof. See Matter of SofJici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crajl of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Furthermore, even if the foregoing individuals were hired by the petitioner for the 
position of Legends Clubhouse manager, or other restaurant manager positions in the company, that 
would not demonstrate that the petitioner only hires individuals with specialty degrees for such positions. 
The record does not show that other individuals without specialty degrees were not considered for 
restaurant manager positions over the years. Nor does it show that the petitioner only hired individuals 
with specialty degrees during the twenty-five years since its establishment in 1981, or instituted such a 
policy in the intervening years. 
Based on the foregoing analysis, the AAO determines that the proffered position does not qualify as a 
specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) because the record does not establish that the 
petitioner normally requires a baccalaureate degree in a specific specialty or its equivalent for the 
proffered position. 
Finally, the record does not establish that the specific duties of the restaurant manager position are so 
specialized and complex that the knowledge required to perform them is usually associated with a 
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baccalaureate or higher degree. As far as the record shows, the duties of the position do not exceed the 
scope of those performed by a typical restaurant manager, which the Handbook indicates does not require 
baccalaureate level knowledge in a specific specialty. Thus, the proffered position does not meet the 
fourth alternative criterion of a specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the petitioner has failed to demonstrate that its restaurant manager 
position meets any of the criteria enumerated in 8 C.F.R. 5 214.2(h)(4)(iii)(A) to qualify as a specialty 
occupation. The record does not establish that the beneficiary will be coming temporarily to the United 
States to perform services in a specialty occupation, as required under section lOl(a)(lS)(H)(i)(b) of the 
Act, 8 U.S.C. 5 llOl(a)(lS)(H)(i)(b). 
As previously discussed, the director also determined that the beneficiary is not qualified to perform the 
services of a specialty occupation. Since the beneficiary's credentials are relevant only if the proffered 
position is found to be a specialty occupation, which is not the case here, the AAO will not further 
address counsel's arguments with respect to the beneficiary's qualifications. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.