dismissed H-1B Case: Natural Stone Supply

.,
identifyingdata deletedto
preventclearly unwarranted
invasionofpersonalpnvacy
PlJBi,ICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave. NW, Rrn. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: SRC 05 199 51367 Office: TEXAS SERVICE CENTER Date: MAR-O 6 2007· .
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. § 1l01(a)(15)(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
www.usets.gov
SRC 05 199 51367
Page 2
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 natural stones and tiles supplier: It seeks to employ the beneficiary as an operations
manager and to classify him 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. § 1l01(a)(15)(H)(i)(b).
The director denied the petition on· the ground that record failed to establish that the proffered position
qualifies as a specialty occupation.
Section 214(i)(I) 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 abachelor'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. § 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.
§ 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 1-290B. The AAO reviewed the record in its entirety before issuing its decision.
The petitioner describes itself as an importer and distributor of travertine, marble, granite, and limestone from
Europe, South America, and the Middle East. The petitioner states that it was established in 2000, has 25
employees and annual sales in excess of $5 million, and proposes to employ the beneficiary for three years, at
"
SRC 05 19951367
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an annual salary of $50,000, as an operations manager. In a letter accompanying the Form 1-129 the
petitioner describes the proffered position as follows:
Opustone must be highly efficient operationally. This means the use of computerized
systems covering purchasing, sales, warehousing, inventory controls, collections, etc. The
development and implementation of these computerized systems and all other aspects of
operations analysis and management, including the operation of machinery and equipment,
management of supplier relationships, and dealing directly with customers' specific
requirements on custom orders, will constitute the responsibilities of the operations manager
[T]he operations manager will participate in the day-to-day operations of the business,
including establishing measures for ascertaining operating efficiency and for achieving
efficiency targets, determining staffing levels and the work content of .specific jobs. The
operations manager will also be responsible for cost control, problem-solving, decision
making, and analytical analysis. He will continuously analyze and evaluate the incremental
costs and benefits associated with alternative operations decisions, determine anticipated
costs, measuring actual costs, noting variances between actuals and what is expected, and
then developing programs to eliminate such variances in the future.
While the operations manager will not be directly responsible for sales and marketing, it is
his responsibility to provide technical support to the sales department .... The operations
manager must be knowledgeable about marketing. In addition, he will be responsible for
commercial relations. This will involve customer contact, establishing and maintaining
satisfactory supplier and customer relationships ....
Dealing with producers in Europe, South America, and the Middle East involves international
and cross-cultural understanding ....
[T]he operations manager will handle supplier relations and the operational integration. of
suppliers' deliveries with our own operations and logistics ....
The operations manager will be responsible for selecting and managing new staff. This will
involve recruitment, selecting personnel, establishing compensation and other terms and
conditions of employment, training, performance monitoring and evaluation, discharging of
employees, etc.
According to the petitioner, the proffered position requires at least a bachelor's. degree in business
administration or a related field. I The beneficiary is qualified for the position, the petitioner declares, by
virtue of his graduation from Marmara University in Turkey with a degree in German on June 20, 1997, and
more than seven years of work experience in business administration. The petitioner cites an evaluation from
I A. degree with a generalized title such as business administration, without further evidence of a specific
course of study closely related to the proffered position, is not a degree in a specific specialty and would not
be sufficient to classify the position as a specialty occupation. See Matter of Michael Hertz Associates, .
19 I&N Dec. 558, 560 (Comm. 1988).
SRC 05 19951367
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(Morningside) which concludes that the beneficiary's
education and experience in Turkey is equivalent to a bachelor's degree in business administration from an
accredited college or university in the United States.
In her decision the director reviewed the evidence of record and concluded that it failed to establish that the
proffered position qualifies as a specialty occupation. The director discussed two occupational resources
submitted by the petitioner - the Occupational Information Network, O*Net OnLine (O*NET OnLine) and the
Department of Labor (DOL)'s Occupational Outlook Handbook (Handbook) - and cited information therein
which indicates that a bachelor's degree in a specific specialty is not a minimum educational requirement for
entry into operations manager positions. The director determined that other documentation submitted by the
petitioner - including a letter from another company in the petitioner's line of business discussing the
educational requirements for operations managers, as well as eight internet job announcements for operations
managers - also failed to establish that a baccalaureate degree in a specific specialty is the minimum
educational requirement for the proffered position. Based on the evidence of record, the director concluded
that the proffered position does not qualify as a specialty occupation under any of the criteria enumerated at
8 C.F.R. § 214.2(h)(4)(iii)(A).
On appeal counsel asserts that the petitioner's "complex international business requires an operations
manager with at least a bachelor's degree or equivalent ... with specialized knowledge and experience [in]
international trade in quality building materials." Though counsel indicated on Form I-290B that a brief
and/or evidence would be sent to the AAO in support of the appeal within 30 days, no such brief or evidence
has been submitted.
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, CIS
routinely consults the DOL 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 Hird/Blaker 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 1165-66~,
The AAO agrees with the director that the duties of the proffered position reflect the Handbook's description
of a "general and operations manager," which is a sub-category of the 'broad occupational field called "top
executives." The duties of the occupation are described as follows in the Handbook, 2006-07 edition, at 68:
General and operations managers plan, direct, or coordinate the operations of companies or
public and private sector organizations. Their duties include formulating policies, managing
daily operations, and planning the use of-materials and human resources, but are too diverse
and general in nature to be classified in anyone area of management or administration, such
as personnel, purchasing, 'or administrative services. In some organizations, the duties of ...
operations managers may overlap the duties of chief executive officers.
SRC 05 19951367
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The Handbook describes the educational background and experience of top executives, including operations
managers, as follows:
The formal education and experience of top executives varies as widely as the nature of their
responsibilities. Many top executives have a bachelor's or higher degree in business
administration or liberal arts ....
Some top executives in the public sector have a background in public administration or
liberal arts. Others might have a background related to their jobs ... :
Many top executive positions are filled from within the organization by promoting
experienced, lower level managers when an opening occurs. In industries such as retail trade
or transportation , for instance, it is possible for individuals without a college degree to work
their way up within the company and become managers. [Emphasis added .] However, many
companies prefer that their top executives have specialized backgrounds and, therefore, hire
individuals who have been managers in other organizations .
Jd. at 68-69. The 'foregoing information indicates that degrees in a variety of different fields are suitable for
many general and/or operations manager positions, and that some individuals attain such positions without a
college degree. Thus , there is ample opportunity to enter into a general or operations manager position ,
without a baccalaureate or higher degree in a specific specialty.
The other occupational resource cited by counsel " O*NET OnLine, states that most . operations manager
positions require a four-year bachelor 's degree, but some do not. This information does not indicate that a
baccalaureate degree is the normal minimum requirement for operations managers. Nor does it indicate that
the bachelor's degree must be in any specific specialty :
. Based on the foregoing evidence the AAO concludes that the proffered position does not meet the first
alternative criterion of a specialty occupation, at 8 C .F.R. § 214.2(h)(4)(iii)(A)(l) , because a baccalaureate
degree in a specific specialty is not the normal minimum requirement for entry into the position.
With regard to the second alternati ve criterion of a specialty occupation , at 8 C.F .R. § 214.2(h)(4)(iii)(A )(2),
the petitioner has submitted multiple internet job advertisements from other companies for operations
manager positions as ev idence of an industry standard requiring a specialty degree. While all but one of the
advertisements state that a bachelor 's degree is required , most of them do not indicate that the degree must be
in a specific specialty. None of the advertising companies are in the same line of business as the petitioner ,
and there is no evidence in the record that any of them are similar to the petitioner in tIieir scale of operations.
Thus, the internet job advertisements do not establish that a 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 to qualify as a specialty occupation under the first prong ' of 8 C.F .R.
§ 214.2(h)(4) (iii)(A)(2) .
The record includes a letter from the president and vice president of a company in the same line of business as
the petitioner . - who state that "[i]n our company and in the indus~ry as a
whole, the operations manager is a person who holds at least the minimum of a bachelor's degree or its
educational equivalent in business administration, economics, or a related field ." The authors do not identify
SRC 05 19951367
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any individua1(s) past and present who have worked as the company's operations manager, however, and they
neither identify nor document the employee(s) degree(s). The authors do not identify any other companies in
the industry as a basis for their statement about the educational requirements of operations managers, and they
provide no evidenc~ about specific employees in those positions and the degrees they possess. Going on
record without supporting documentation does not satisfy the petitioner's burden of proof. See 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».
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 (Comm. 1988). The AAO
determines that the letter from the president and vice president of Marble / Granite of Florida, Inc. is not
persuasive evidence that a degree requirement in a specific specialty is common to the petitioner's industry in
parallel positions among similar organizations, asrequired for the proffered position to qualify as a specialty
occupation under the first prong of 8 c.F.R. § 214.2(h)(4)(iii)(A)(2).
Nor does the record establish that the proffered position is so complex or unique that it can only be performed
by an individual with a bachelor's degree in a specific specialty. The petitioner has submitted no evidence
demonstrating the uniqueness of the position, and has not demonstrated that the duties of the job distinguish
the position in any decisive way from other operations managers, such that a degree in a specific specialty
would be required. Accordingly, the proffered position does not qualify as a specialty occupation under the
second prong of 8 c.F.R. § 214.2(h)(4)(iii)(A)(2).
As for the third alternative criterion of a specialty occupation, the proffered position is newly created and the
petitioner has no hiring history for it. Thus, the petitioner cannot show that it normally requires a
bacc~laureate or higher degree in a specific specialty, as required for the position to qualify as a specialty
occupation under 8 c.F.R. § 214.2(h)(4)(iii)(A)(3).
Finally, the record does not establish that the duties of the proffered position are so specialized and complex
that they require knowledge usually associated with a baccalaureate or higher degree in a specific specialty.
The petitioner has not shown that the duties of the position exceed the scope of those typically performed by a
an operations manager, which the Handbook indicates is an occupation that does not normally require
baccalaureate level knowledge in a specific specialty. Accordingly, the position does not meet the fourth
alternative criterion of a specialty occupation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
For the reasons discussed above, the record does not establish that the proffered position meets any of the
criteria enumerated at 8 c.F.R. § 214.2(h)(4)(iii)(A) to qualify as a specialty occupation. The petitioner has
not established that the. beneficiary will be coming temporarily to the United States to perform services in a
specialty occupation, as required under section 101(a)(15)(H)(i)(b) ofthe Act, 8 U.S. § 1l01(a)(15)(H)(i)(b).
Beyond the decision of the director, the record does not establish that the beneficiary is qualified to perform
services in a specialty occupation. Section 214(i)(2) of the Act, 8 U.S.c. § 1184(i)(2), provides that an alien
must have the following credentials to be qualified to perform the services of a specialty occupation:
SRC 05 19951367
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(A) full state licensure to practice in the occupation, if such licensure is required to
practice in the occupation,
(B) completion of the degree described in paragraph (l)(B) for the occupation, or
(C) (i) experience in the specialty equivalent to the completion of such degree, and (ii)
recognition of expertise in the specialty through progressively responsible positions
relating to the specialty.
As further explained in 8 C.F.R. § 214.2(h)(4)(iii)(C), an alien must meet one of the following criteria to
qualify to perform the services of a specialty occupation:
(1) Hold a United States baccalaureate or higher degree required by the specialty
occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or
higher degree required by the specialty occupation from, an accredited college or
university;
/
(3) Hold an unrestricted State license, registration or certification which authorizes him
or her to fully practice the specialty occupation and be immediately engaged in that
specialty in the state of intended employment; or
(4) Have education, specialized training, and/or progressively responsible experience
that is equivalent to completion of a United States baccalaureate or higher degree in
the specialty occupation, and have recognition of expertise in the specialty through
progressively responsible positions directly related to the specialty.
, For the purpose of deciding whether the beneficiary is qualified under 8 c.F.R. § 214.2(h)(4)(iii)(C)(4),
8 c.F.R. § 214.2(h)(4)(iii)(D) provides that the determination shall be based on one or more of the following:
(1) An evaluation from an official who has authority to grant college-level credit for
training and/or experience in the specialty at an accredited college or university
which has a program for granting such credit based on an individual's training and/or
work experience;
(2) The results of recognized college-level equivalency examinations or special credit
programs, such as the College Level Examination Program (CLEP), or Program on
Noncollegiate Sponsored Instruction (PONSI);
(3) An evaluation of education by a reliable credentials evaluation service which
specializes in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized professional
association or society for the specialty that is known to grant certification or
· .
SRC 05 19951367
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registration to persons in the occupational specialty who have achieved a certain level
of competence in the specialty;
(5) A determination by the Service [CIS] that the equivalent of the degree required by
the specialty occupation has been acquired through a combination of education,
specialized training, and/or work experience in areas related to the specialty and that
the alien has achieved recognition of expertise in the specialty occupation as a result
of such training and experience. For purposes of determining equivalency to a
baccalaureate degree in the specialty, three years of specialized training and/or work
experience must be demonstrated for each year of college-level training the alien
lacks. For equivalence to an advanced (or Masters) degree, the alien must have a
baccalaureate degree followed by at least five years of experience in the specialty ...
It must be clearly demonstrated that the alien's training and/or work experience
included the theoretical and practical application of specialized knowledge required
by the specialty occupation; that the alien's experience was gained while working
with peers, supervisors, or subordinates who have a degree or its equivalent in the
specialty occupation; and that the alien has recognition of expertise in the specialty
evidenced by at least one type of documentation such as: (i) Recognition of expertise
in the specialty occupation by at least two recognized authorities 2 in the same
specialty occupation; (ii) Membership in a recognized foreign or United States
association or society in the specialty occupation; (iii) Published material by or about
the alien in professional publications, trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation in a foreign country;
or (v) Achievements which a recognized authority has determined to be significant
contributions to the field of the specialty occupation.
The beneficiary does not qualify to perform the services of the specialty occupation under 8. C.F.R.
§ 214.2(h)(4)(iii)(C)(l) because he does not have a U.S. baccalaureate or higher degree, or under 8 C.ER.
§ 214.2(h)(4)(iii)(C)(2) because he does not hold a foreign degree determined to be equivalent to a U.S.
I
baccalaureate or higher degree, or under 8 C.ER. § 214.2(h)(4)(iii)(C)(3) because he does not have an
unrestricted state license to practice the specialty occupatiou. .
In order for the. beneficiary to qualify under 8 C.ER. § 214.2(h)(4)(iii)(C)(4) to perform services in a
specialty occupation, the record must establish that he has a combination of education, specialized training
and progressively responsible work experience equivalent to a U.S. baccalaureate or higher degree in the
specialty occupation, as evidenced by one or more of the documentary forms set forth in 8 C.ER.
§ 214.2(h)(4)(iii)(D). The record includes the aforementioned evaluation of the beneficiary's academics and
work experience by Morningside Evaluations and Consulting, authored by .or. F J 1, Assistant
2 Recognized authority means a person or organization with expertise in a particular field, special skills or
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3)
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of
any research material used. 8 C.F.R. § 214.2(h)(4)(ii).
• • l •
SRC 05 19951367
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Professor of Management Information Systems at Mercy 'College in New York , and an adjunct professor at
the City College of New York and New York University. The evaluation concludes that the beneficiary 's
four-year degree from Marmara University in Turkey , which the transcript in the record shows was in the
field of German , in combination with seven years of work experience in the field of business administration ,
is equivalent to a bachelor's degree in business administration from a U.S . college or university . As
previously noted. ihowever, adegree with a generalized title such as business administration , 'without further
evidence of a specific course of study closely related to the proffered position , does not 'establish that the
beneficiary is qualified to perform services in a specialty occupation. See Matter of Michael Hertz
'A ssociates, 19I&N Dec. 558, 560 (Comm. 1988). Moreover, the record doesnot show that the evaluation
was authored by an official with authority to grant college-level credit for training and/or experience in a
specialty or that any of the institutions with which Professor ; associated has a program for granting
such credit based on training and/or work experience . Thus, the evaluation does not establish that the
beneficiary is qualified under 8 c.F.R. § 214.2(h)(4)(iii)(D)(l) to perform services in a specialty occupation.
Furthermore, since the Morningside evaluation reviews the beneficiary's work experience as well as his
education in Turkey, its conclusion as to thebeneficiary 's U.S. degree equivalency cannot be considered as
evidence of the beneficiary 's qualification under 8 C.F .R. § 214.2(h)(4)(iii )(D)(3). A credentials evaluation
service, as specified in the regulation, may only evaluate foreign educational credentials .
Nor does the record establish that the beneficiary has the equivalent of a baccalaureate degree in a specific
specialty through a combination of education , specialized training, and/or work experience in the specialty
occupation or related areas , and recognition of expertise therein, as required to meet the alternative qualifying
criteria at8 C.F.R.§ 214.2(h)(4)(iii)(D)(5). The regulation requires three years of specialized work
experience' for each year of college-level training the alien lacks for equivalence to a baccalaureate degree.
The AAO will accept the beneficiary's first two years of credit at Marmara University as general coursework
preceding the specialization of a degree. Therefore, the petitioner must show that the beneficiary has at least
six years of progressively responsible work experience in a business-related specialty to account for a third
and fourth year of academic study ina business specialty in the United States . There is no documentation in
the record, such as letters from previous employers, to corroborate any of the. work experience cited in the
Morningside evaluation. Going on record without supporting documentation does not satisfy the petitioner's
burden of proof. See Matt er of Soffici, id. In addition , the petitioner has not demonstrated that the beneficiary '
has at least three years of experience in a business-related specialty while working with peers, supervisors, or
subordinates who have a degree or its equivalent iri a specialty occupation , and that the beneficiary has
documented recognition of expertise in the specialty . As the record does not conta in such documentation , the
beneficiary 's work experience cannot be counted for the purpose of determining degree equivalency under
8 C.F.R. § 214.2(h)(4 )(iii)(D)(5).
For the reasons discussed above, the petitioner has failed to establish that the beneficiary is qualified to
perform services in a specialty occupation. On this ground as well, the petition may not be approved.
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.c. § 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.