dismissed H-1B Case: Petroleum Distribution

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. A3042 
Washtngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
-- FILE: EAC 03 186 5 1358 Office: VERMONT SERVICE CENTER D~~~: u'. , I -" 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. !j 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, Director 
Administrative Appeals Office 
EAC 03 186 51358 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant 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 wholesale distributor of gasoline. It seeks to employ the beneficiary as a manager of 
operations 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. # 1101 (a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as 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. 
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. 
# 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: (I) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
decision; and (5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before 
issuing its decision. 
EAC 03 186 51358 
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The petitioner describes itself as a wholesale distributor of gasoline, lubricants, and petroleum products in 
the Pennsylvania and New Jersey area. The business was established in November 2002, had five 
employees at the time the petition was filed in June 2003, and according to the petitioner earned revenues 
of $750,000 in 2003. The petitioner proposes to hire the beneficiary as a part-time (20 hourslweek) 
manager of operations, a position described in the response to the RFE as responsible for "direct[ing] the 
operations of distribution, warehousing, and sales of wholesale petroleum products in accordance with 
policies, principles, and procedures established by the company." The duties of the proffered position, 
and the percentage of time required by each duty, are listed by the petitioner as follows: 
15% Confers with other personnel to establish quality control standards, develop budget 
and cost controls, and to obtain data regarding types, quantities, specifications, and 
delivery dates of products ordered. 
15% Confers with customers and representatives of associated industries to evaluate and 
promote improved and expanded services in area. 
15% Develops plans for efficient use of materials, machines, and employees. 
15% Reviews production costs and product quality, and modifies production and inventory 
control programs to maintain and enhance profitable operation of division. 
15% Reviews operations of competing organizations, and plans and directs sales program 
to develop new markets, using sales aids, advertising, promotional programs, and field 
services. 
15% Plans and directs operations activities and establishes priorities for products in keeping 
with effective operations and cost factors. 
10% Conducts staff meetings, prepares reports. 
Though not appearing in the above list, an additional duty mentioned elsewhere in the job description is 
"ensur[ing] implementation of environmental safety requirements with regard to highly flammable and 
toxic gasoline products." The petitioner states that the performance of the foregoing duties requires at 
least a baccalaureate degree in business administration. 
In his decision the director declared that the job duties listed by the petitioner were too vague to indicate 
what the beneficiary would be doing on a daily basis or to establish that a baccalaureate degree in a 
particular field of study was necessary to perform the duties. Given the vagueness of the job duties, and 
considering the scope and nature of the petitioner's business operations, the director was not persuaded 
that the beneficiary would be performing the services of an operations manager, as described in the 
Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook). The petitioner did not 
establish that it or other comparable employers require at least a baccalaureate degree or its equivalent in 
a specific field of study for similar positions, the director continued, or that the duties of the proffered 
position are so specialized and complex that their performance is usually associated with baccalaureate or 
higher level knowledge. 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. jS 214.2(h)(4)(iii)(A). 
EAC 03 186 51358 
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On appeal counsel asserts that the director erred in finding that the job duties are too vaguely described to 
classify the proffered position as that of a manager of operations, or that the duties do not require the 
services of an individual with a specialty degree. Counsel asserts that the position requires knowledge of 
marketing and distribution processes, with a heavy emphasis on safety measures due to the volatility of 
gasoline, as well as an understanding of complex technical devices and equipment used in gasoline 
storage and distribution. Counsel reiterates that a bachelor's degree in business administration is the 
minimum educational requirement for the position, and cites a series of cases for the proposition that a 
company's size or past hiring practices are not dispositive of its current need for an H-1B employee if the 
employer can document that a proffered position is professional level and requires the services of an 
individual with a specialty degree. Counsel asserts that the petitioner previously hired an individual with 
a bachelor's degree in business administration for the manager of operations position. 
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, fnc. v. Reno, 36 F.Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting HirdIBlaker Corp. v. Suva, 
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. 
Based on the description of the proffered position in the record, the AAO is persuaded that the duties 
reflect those of an operations manager, a sub-category of the Handbook's broad occupational category 
called "top executives." The duties of an operations manager are described as follows in the DOL 
Handbook, 2004-05 edition, at 65: 
. . . (O]perations 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 any one 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. 
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 . . . . Because many top executive positions are filled by promoting 
experienced, lower level managers when an opening occurs, many top managers have 
EAC 03 186 5 1358 
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been promoted from within the organization. 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. However, many companies 
prefer that their top executives have specialized backgrounds and, therefore, hire 
individuals who have been managers in other organizations. 
Id. at 66. While the foregoing excerpt indicates that some operations manager positions may require 
baccalaureate or higher degrees in a specific specialty, it is not the normal minimum requirement for entry 
into such a position. The AAO concludes that the proffered position does not meet the first alternative 
criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I), because a baccalaureate degree in 
a specific specialty is not the normal minimum requirement for entry into the position. 
With regard to the second alternative criterion of a specialty occupation, there is no evidence in the record 
that a degree requirement in a specific specialty is common to the petitioner's industry in parallel 
positions among similar organizations. Nor does the evidence of record demonstrate that the proffered 
position is so complex or unique that a degree in a specific specialty is required to perform the job. 
Accordingly, the proffered position does not qualify as a specialty occupation under either prong of 
8 C.F.R. 5 214.2 (h)(4)(iii)(A)(2). 
As for the third alternative criterion of a specialty occu ation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), the 
petitioner asserts that it previously hired an individual, P with a bachelor of science in business administration for the proffered position. There is no documentation in the record showing in - 
what capacity Mr. 
T 
worked for the petitioner. Going on record without supporting 
documentary evidence IS not su ficient for purposes 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. Cornm. 1972)). Furthermore, the employer's requirement of a bachelor's degree in 
business administration does not meet the criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) because a degree 
of such generalized title, without further evidence of a specific course of study closely related to the 
proffered position, does not establish that the employer normally requires a baccalaureate or higher 
degree in a specific specialty, or its equivalent, for the position. See Matter of Michael Hertz Associates, 
19 I&N Dec. 558,560 (Comm. 1988). 
Finally, the record does not show that the duties of the proffered position are so specialized and complex 
that they require knowledge at the level of a baccalaureate or higher degree. The only duties 
distinguishing the proffered position from those of most other operations managers are those involving 
environmental safety requirements for highly flammable and toxic gasoline products. The petitioner has 
not shown that the performance of those duties, or any of the other job duties, requires knowledge 
associated with a degree in a specialty field. Indeed, the petitioner's statement that the proffered position 
requires a bachelor's degree in business administration, without a particular major or area of 
concentration, appears to contradict the assertion that a degree in a specific specialty is required. 
Accordingly, the position does not meet the fourth alternative criterion of a specialty occupation at 
8 C.F.R. 5 2 14.2(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 in 8 C.F.R. 9 214.2(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 perfom 
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services in a specialty occupation, as required under section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 
§ 1 lol(a)( 15)(H)(i>(b). 
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.