dismissed H-1B Case: Hotel Management

identifying data deleted to
prevent clearly unwarranted
Iavasionofpersonalprivacy
PUBttCCOpy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529 '
u.s.Citizenship
and Immigration
Services·
FILE: SRC 05 14451953 Office: TEXAS SERVICE CENTER Date: MAR 062007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the:
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(15)(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
www.uscis.gov
SRC 05 14451953
Page 2
DISCUSSION: The director of the service center 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 owns and operates franchise hotels. It seeks to employ the beneficiary as a hotel manager. The
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(q)(H)(i)(b).
The director denied the petition on the basis that the proffered position fails to qualify as a specialty
occupation. Counsel submitted a timely appeal.
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(1), 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.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one ofthe
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 requited
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" ill the, criteria at
I
8 C.F.R. § 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 evidence (RFE); (3)' the petitioner's response to the director's request; (4) the
SRC 05 14451953
Page 3
director 's denial letter ; and (5) the Form 1-290B and supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The petitioner is seeking the beneficiary 's services as a hotel manager. Evidence of the beneficiary 's duties
includes: the Form 1-129 petition and the attachments accompanying the Form 1-129 petit ion, the petitioner 's
support letter, and the petitioner 's response to the RFE . According to this evidence , the beneficiary would
perform duties described as follows: interviewing , selecting , training and supervising staff; organizing and
conducting pre-shift and departmental meetings , communicating information to the staff such a~ the house
I
count, the menu, banquet schedules, and schedules and work assignments; training managers ,to visually
monitor and ensure food quality and service standards are met for food, beverage , and banquet services;
overseeing staff, food and beverage, and pre-banquet meetings so that information is communicated to
departmental staff; reviewing the checklists of rooms to ensure cleanliness , maintenance, and safety standards
are met ; maintaining profitability of departments to support overall hotel operations ; controlling payroll and
equipment costs ; ensuring stock levels are' maintained by calculating inventory ; ordering and retrieving
supplies ; evaluating the cost effectiveness of division 'operations and developing and implementing cost
savings and profit enhancement measures ; interacting positively with customers promoting facilities and
services; resolving problems to the satisfaction of parties; maintaining rapport with departments ;
communicating with foreign guests in English , Spanish , and French ; utilizing computer-aided techniques to
create forecast and revenue reports for the owner 's review and approval.Fo~ the proposed position the
petitioner requires work experience and a bachelor 's degree or its equi valent in hotel management. jtourism, or
a related field .
The director denied the petition . She stated that the submitted job postings fail to establish that the petitioner
normally requires a baccalaureate degree in a specific academic field for the proposed position, as required by
section 214(i)(l) of the Act , 8 U.S.C. § 1184(i)(l) 'iand that a specific baccalaureate degree is common to the
.industry in parallel positions among similar organizations to the petitioner. The letter from Ms.
failed to persuade the director to find that Red RoofInn managers must hold a baccalaureate degree ina specific
specialty. According to the director, the proposed position involves a range of duties that do hot require
specialization in a particular area. The director stated that the proposed position has general managerial duties
and citing Matter of Caron International, -Inc., 19 I&N Dec. 791 (Comm. 1988), she stated that "[g]eneral
[m]anagerial occupations are normally not considered to be professional endeavors requiring specific academic
degrees ." The director concluded that the proposed position does not satisfy the statutory requirement for a
. specialty occupation.
On appeal, counsel states that the proffered position is a specialty occupation since CIS previously approved a
petition "involving the same occupation , same parties , and the same underl ying facts as the petition at issue
here. "l Counsel submits a memorandum from William R. Yates , Associate Director for Operations , The
I It is noted that the referenced approval pertaining to the beneficiary was not filed by the petitioner ; it was
filed by Diplomat Hotel Corporation , and that the petitioner is the successor-in-interest to that corporation.
SRC 05 14451953
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Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent
Determination Regarding Eligibility for Extension of Petition Validity , HQOPRD 72/11.3 , (April 23, 2004) ,
.and states that it indicates that an adjudicator should not reverse a prior determination if there is no material
change in the underlying facts in the petition , and no material error , or changed circumstances , or new
material information. Counsel asserts that the job duties in the two petitions filed by the petitioner on behalf
of the beneficiary are the same, and that the director did not articulate a material error, changed
circumstances, or new material information in her decision. Thus, counsel contends that the instant petition
should be approved. Further, counsel asserts that CIS had approved a petition filed by the petitioner for
another beneficiary for a hotel operations manager position, which is subordinate to a hotel manager. Counsel
states that the beneficiary's duties mirror those of the hotel manager in Matter ofSun, l21&N Dec; 535 (D.O .
1966), a case that establishes a hotel manager as a professional occupation. '
Upon review of the record , the petitioner has established none of the four criteria outlined 111
8 C.F.R. § 214.2(h)(4)(iii)(A) . Therefore, the proffered position is not a specialty occupation.
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the
position and determines , from a review of the duties of the position and any supporting evidence , whether the
position actually requires the theoretical and practical application of a body of highly specialized knowledge ,
and the attainment of a ' baccalaureate degree in a specific specialty as the minimum for entry into the
occupation as required by the Act. The AAO routinely consults th~ Handbook for its information about the
duties and educational requirements of occupations.
Factors often considered by CIS when determining whether a position is a specialty ?ccupation includes : whether
the 2006-2007 edition of the Department of Labor's Occupational Outlook Handbook (the Handbooki reports
that the industry requires a degree; whether the industry 's professional association has made a degree aminimum
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 i1151, 1165
(D.Minn. 1999)(quoting Hird/BlakerCorp. v. Sava, 712 F . Supp. 1095, 1102 (S.D.N.Y . 1989)).
The AAO will first consider the criterion at 8 C .F.R. § 214.2(h)(4)(iii)(A)(l) : a baccalaureate or higher
degree or its equivalent is the normal minimum requirement for entry into the particular position . A review of
the Handbook reveal s that the proposed duties are encompassed within the classification "lodging managers ."
This classification includes general managers who have overall responsibility for the operation of the hotel
such as setting room rates , allocating funds to departments , approving expenditures , and ensuring standards
for guest service , decor , housekeeping, food quality , and banquet operations. The classification also includes
resident or hotel managers who are responsible for the day-to-day operations of the property and assistant
managers who help run the day-to-day operations of the hotel.
2Counsel states that the approved petition for
successor-in-interest to Diplomat Hotel Corporation.
was filed by the petitioner as the :
SRC 05 144 51953.
Page 5
For the qualifications of lodging managers the Handbook conveys the following:
Hotels increasingly emphasize specialized training. Postsecondary trammg in hotel,
restaurant, or hospitality management is preferred for most hotel management positions;
however, a college liberal arts degree may be sufficient when coupled with related hotel
experience Of business ~ducation. Internships or part-time or summer work experience in a
hotel are an asset to students seeking a career in hotel management. The experience gained
and the contacts made with employers can greatly benefit students after graduation. Most
degree programs include work-study opportunities.
Community colleges, junior colleges, and many universities offer certificate or degree
programs in hotel, restaurant, or hospitality management leading to an associate, bachelor; or
graduate degree. Technical institutes, vocational and trade schools, and other academic
institutions also offer courses leading to formal recognition in hospitality management. In
total, more than 800 educational facilities provide academic training for would-be lodging
managers. Hotel management programs include instruction in hotel administration,
accounting, economics, marketing, housekeeping, food service management and catering, and
hotel maintenance engineering. Computer training also is an integral part of hotel
management training, due to the widespread use of computers in reservations, billing, And
housekeeping management. I
The Handbook indicates that employers do not require lodging managers to hold a baccalaureate degree in a
specific academic field. The record reflects that the proposed duties are encompassed within the description
of a typical lodging manager. Consequently, based on the evidence in the record and the Handbook's
information, the petitioner fails to establish the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l): that a
baccalaureate or higher degree or its equivalent is the normal minimum requirement for entry into the
particular position.
To establish the first alternative prong at 8. C.F .R. § 214.2(h)( 4)(iii)(A)(2), that a degree requirement is
common to the industry in parallel positions among similar organizations, the petitioner submits job postings
and a letter from' ~ general manager, The job postings do not
establish a common degree requirement in the industry as none of the companies in the postings (Red Roof
Inn, RM Hospitality, and The Ashford Club) require a baccalaureate degree in a specific academic discipline
for their positions.
Michelle Lassiter's letter is not convincing in establishing the proposed position as a specialty occupation.
Her letter states:
I am the GA. ... One of the
prerequisites for this General Manager pOSItIOn was that I had achieved a [b ]achelor' s
[d]egree .... In the type of work that General Managers are responsible for it is imperative
SRC 05 14451953
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that we understand the entire scope of business. . Our responsibilities range from payroll,
marketing, sales, to housekeeping.
The record contains the bachelor's degree in business administration held by the general manager; it does not
contain a transcript describing the courses. that comprise the degree. A petitioner must demonstrate that the
proffered position requires a precise and specific course of study that relates directly and closely to the
position in question. Since there must be a close corollary between the required specialized studies and the
position, the requirement of a degree with a generalized title, such as business administration or liberal arts,
without further specification, does not establish the position as a specialty occupation. Matter of Michael
Hertz Associates, 19 I&N Dec. 558 (Comm. 1988). Thus, the fact that the general manager holds a
baccalaureate degree in business administration fails' to establish the proposed position as a specialty
occupation. It is noted that even if the general's manager's baccalaureate degree had been in a specific field
related to the proposed position, it would have been insufficient to establish that there is an industry-wide
requirement of a baccalaureate degree in a specific academic field for a general manager position. One
example does not establish an industry-wide degree requirement. Going on record without supporting
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972)). Por these reasons, the evidence fails to establish the first alternative
prong at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(3) requires that the petitioner establish a past practice of
normally requiring a degree or its equivalent for the position. The record contains the beneficiary's H-lB
approval notice and the approval for_he petitioner's creation of a position with a
perfunctory bachelor's degree requirement will not mask the fact that the position is not a specialty
occupation. CIS must examine the ultimate employment of the alien, and determine whether the position
qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 P. 3d 384 (5 th 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 Act? 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 a 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. Here, the evidence in the record reflects that the proposed
position is that of a typical lodging manager, which does not require a baccalaureate degree in a specific
academic field. Furthermore, the postings from Red Roof Inn4 fails to establish a past practice of normally
3 The court in Defensor v. Meissner observed that the four criteria at 8 C.P.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.
4 The petitioner operates a franchise of the Red RoofInn.
SRC 05 14451953
Page 7
requiring a degree or its equivalent for the position as none of the positions in the postings require a baccalaureate
degree in a specific academic field. It is for these reasons that the evidence fails to establish the criterion at
8 C.F.R. § 214.2(h)(4)(iii)(A)(3).
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) requires the petitioner to establish that the nature of the
specific duties is so specialized and complex that the knowledge required to perform the duties is usually
associated with the attainment of a baccalaureate or higher degree in a specific specialty. The Handbook
discloses that the proposed position is similar to a lodging manager, an occupation that does not require a
baccalaureate degree in a specific specialty. The letter from does not state that a general
manager must hold a baccalaureate degree in a specific academic field. The Handbook's information and the
evidence of record, including the letter from , fail to establish the criterion at
8 C.F.R.§ 214.2(h)(4)(iii)(A)(4).
Counsel asserts that CIS has already determined that the proffered position is a specialty occupation since it
has approved other, similar petitions in the past. This record of proceeding does not, however, contain all of
the supporting evidence submitted to the service center in the prior cases. In the absence of all of the
corroborating evidence contained in those records of proceeding, the documents submitted by counsel are not
sufficient to enable the AAO to determine whether the position offered in the prior cases were similar to the
position in the instant petition. Each nonimmigrant petition is a separate proceeding with a separate record.
See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, CIS is limited to the information
contained in the record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Although the AAO may attempt to
hypothesize as to whether the prior cases were similar to the proffered position or were approved in error, no
such determination may be made without review of the original record in its entirety. If the prior p'etitionwas
approved based on evidence that was substantially similar to the evidence contained in this record of
proceeding, however, the approval of the prior petition would have been materially erroneous. CIS is not
required to approve petitions where eligibility has not been demonstrated, merely because of prior approvals
that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597
(Comm. 1988). Neither CIS nor any other agency must treat acknowledged errors as binding. precedent.
Sussex Engg. Ltd. v. Montgomery 825F.2d 1084, 1090 (6th Cir. 1987), cert denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
The prior approvals do not preclude CIS from denying an extension of the original visa based on reassessment
of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir.
,2004).
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The memorandum from William R. Yates is not persuasive in establishing the proposed position as a
specialty occupation. The memorandum states, in part, the following:
In matters relating to an extension of nonimmigrant petition validity involving the same
parties (petitioner and beneficiary) and the same underlying facts, a prior determination by-an
adjudicator that the alien is eligible for the particular nonimmigrant classification sought
should be given deference. A case where a prior approval of the petition need not be given
I
deference includes where: (1) it is determined that there was a material error with regard, to
the previous petition approval; (2) a substantial change in circumstances has taken place ...
Material error, changed circumstances, or new material information must be clearly
articulated in the resulting request for evidence or decision denying the benefit sought.l as
appropriate.
A material error involves the misapplication of an objective statutory or regulatory
requirement to the facts at hand ....
As stated above, a material error, a substantial change in circumstances, or new material
information must be clearly articulated in a request for evidence or decision denying the
benefit. The Deputy Center Director (or designated Acting Deputy Center Director in
situations where the Deputy Center Director is absent) should review and clear in writing,
prior to the issuance of an RFE or final decision, any case involving an extension of stay of
petition validity in a nonimmigrant classification where the parties and facts involved have
not changed, but where the current adjudicating officer determines nonetheless that it, is
necessary to issue an RFE or deny the application for extension of petition validity.
The AAO notes that the approved petition filed on behalf of the beneficiary was not filed by the petitioner: it
I
was filed by Although the petitioner asserts in its April 3, 2005 letter that it
acquired the and is its successor-in-interest for immigration purposes, no
documentary evidence in the record substantiates its assertion. The record contains no corporate ~ocuments
evidencing the restructure, such as contracts and other legal instruments containing a description the
acquisition, corporate literature, or copies of documents filed with the government of the state of
incorporation. Thus, the parties are not the same in the two petitions. The Handbook's information reveals
that the beneficiary's duties mirror those of a typical lodging manager, which does not requjre a specific
baccalaureate degree. Thus, the record as constituted does not establish that the beneficiary's duties would
require a baccalaureate degree in a specific academic field.
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 on this
ground.
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.
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ORDER: The appeal is dismissed. The petition is denied.