dismissed H-1B Case: Restaurant

identifying dats - 
prevent Ckdy 
invasion of wnOaal0- 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Ilm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 02 244 5 1266 Office: CALIFORNIA SERVICE CENTER Date: s~p 1 Q 2mtj 
PETITION: Petition for a Nonimmigrant 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, Director 
Administrative Appeals Office 
WAC 02 244 5 1266 
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 fast-food restaurant business. It seeks to employ the beneficiary as a human resource 
director and to classify her as a nonirnmigrant 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. 3 1 lOl(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. 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 CI.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 I-290B, counsel's appeal brief, and supporting materials. The AAO reviewed the 
record in its entirety before issuing its decision. 
WAC 02 244 5 1266 
Page 3 
In Form 1-129 and an accompanying letter the petitioner indicated that it is the franchise owner of two 
Arby's Roast Beef Restaurants in Hayward and Milpitas, California. The petitioner stated that it had 
twelve full-time employees and gross sales of $600,000 in 2001, and proposed to hire a human resource 
director to manage all aspects of personnel activities. The functions of the position were described as 
follows: 
Focus on strategic uses of human resources to accelerate sales and new business and 
propose corresponding policies relating to recruitment, promotions and benefits. 
Establish sales development teams, team goals and objectives; and improve overall 
employee performance. Prepare reports to the President on employee performance 
issues, behavioral issues, and compensation issues. Develop performance standards and 
methodologies for management to evaluate and improve sales and employee 
performance, as well as to handle performance problems. Investigate complaints against 
employees from customers and co-workers, and ensure actions taken are consistent with 
established policies and practices. 
According to the petitioner the proffered position requires a bachelor's degree in psychology or human 
behavior. The beneficiary has a bachelor of science degree, with a major in psychology, from (lentro 
Escolar University in Manila, the Philippines, granted on March 22, 1994. 
In response to the RFE the petitioner listed the specific duties and responsibilities of the human resource 
director, and the percentage of time required by each, as follows: 
30% Responsible for the strategic uses of human resources to accelerate sales and new 
business and propose corresponding policies relating to recruitment, promotions and 
benefits in accordance with the petitioner's administrative policies. Establish sales 
development teams, team goals and objective(s). 
20% With knowledge of the restaurant business and how a restaurant should be managed, 
recommend office policies, practices and procedures and the necessary changes in the 
existing ones, if any; and implement such policies/changes. 
20% Determine the need to hire and fire additional staff as well as evaluate the 
qualifications of staff to be hired; prepare the work schedules and evaluate the work 
of such staff. Prepare reports to the President on employee performance issues, 
behavioral issues, and compensation issues. 
15% Responsible for developing performance standards and methodologies for 
management to evaluate and improve sales and employee performance, as well as for 
handling performance problems. 
15% Prepare and submit a budget to justify expenditures for restaurant equipment, 
supplies, and personnel. 
The petitioner asserted that the position was a specialty occupation because it entailed the theoretical and 
practical application of specialized knowledge in human resource management, training and deve1op:ment. 
WAC 02 244 5 1266 
Page 4 
Based on the petitioner's description of the proffered position, the director determined that the duties of 
the position reflected those of a human resources specialist, as described in the Department of Labor 
(DOL)'s Occupational Outlook Handbook (Handbook). According to the director, the information in the 
Handbook indicated that a bachelor's degree in a specialized field of study is not the normal, minimum, 
industry-wide standard for entry into the occupation of human resource specialist. The record dtd not 
show that the petitioner normally required applicants for the position to possess a specialty degree, the 
director continued, or that the duties and responsibilities of the position indicated complexity or authority 
beyond that normally encountered in the occupational field. The director concluded that the proffered 
position did not meet any of the criteria of a specialty occupation enumerated at 8 C.F.R. 5 214.2 
(h)(4)(iii)(A). 
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 firm 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 115 1, 1165 (D.Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 
712 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. 
On appeal counsel asserts that the director erred in finding that a bachelor's degree in a specializecl field 
of study is not a normal, minimum, industry-wide requirement for entry into the occupation of hluman 
resource director and that the proffered position is not a specialty occupation. According to counsel the 
Handbook's description of the educational requirements for human resources managers and specialists 
clearly indicate that a baccalaureate degree in a limited set of specialty areas is the minimum requirement 
for entry into such positions, thereby making the proffered position a specialty occupation. Counsel 
reiterates that the beneficiary has a bachelor's degree in one of those specialty areas and is therefore 
qualified to perform the services of the specialty occupation. 
As indicated in the DOL Handbook, human resources managers and specialists are part of a broad 
occupational category (which also includes training and labor relations managers and specialists) and the 
duties of individual positions vary considerably depending on the nature of the company and the scale of 
its operations. Reflecting the broad range of positions within the occupational category, educational 
requirements also vary. As explained in the Handbook, 2004-05 edition, at page 49: 
Because of the diversity of duties and levels of responsibility, the educational 
backgrounds of human resources, training, and labor relations managers and specialists 
vary considerably. In filling entry-level jobs, many employers seek college graduates 
who have majored in human resources, personnel administration, or industrial and labor 
relations. Other employers look for college graduates with a technical or business 
background or a well-rounded liberal arts education . . . . 
WAC 02 244 5 1266 
Page 5 
Because an interdisciplinary background is appropriate in this field, a combination of 
courses in the social sciences, business, and behavioral sciences is useful. Some jobs 
may require a more technical or specialized background in engineering, science, finance, 
or law, for example . . . . 
An advanced degree is increasingly important for some jobs. Many labor relations jobs 
require graduate study in industrial or labor relations. A strong background in industrial 
relations and law is highly desirable for contract negotiators, mediators, and arbitrators; 
in fact, many people in these specialties are lawyers. A background in law also is 
desirable for employee benefits managers and others who must interpret the growing 
number of laws and regulations. A master's degree in human resources, labor relations, 
or in business administration with a concentration in human resources management is 
highly recommended for those seeking general and top management positions. 
The AAO does not agree with counsel that the foregoing description of the educational requirements for 
humans resources managers and specialists indicates that a bachelor's degree in a specific specialty is the 
normal minimum requirement for such a position. While a bachelor's degree in some field does appear to 
be a minimum requirement, the widely varying examples in the Handbook indicate that both the level of 
the degree and the area of desired educational specialty depend on such factors as the nature of the hiring 
entity, its line of business and scale of operations, and the complexity of its organizational structure. 
Thus, different employers look for different educational credentials in hiring entry-level human resources 
managers and specialists, and some look simply for "a well-rounded liberal arts education." Based cln the 
information in the Handbook, the AAO concludes that a baccalaureate or higher degree in a specific 
specialty is not the normal minimum requirement for entry into a position of human resources manager or 
specialist. Accordingly, the proffered position does not meet the first alternative criterion of a specialty 
occupation, set forth in 8 C.F.R. 5 214.2 (h)(4)(iii)(A)(l). 
With respect to the second alternative criterion of a specialty occupation, set forth in 8 C.F.R. 5 214.2 
(h)(4)(iii)(A)(Z), there is no evidence in the record that a baccalaureate degree in a specific specialty is 
common to the industry in parallel positions among similar organizations. Nor does the record show that 
the proffered position in this case is so complex or unique that it can only be performed by an individual 
with a baccalaureate degree in a specific specialty. Thus, 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 indicated in the record, the position of human resources director was newly created at the time of 
filing. Since there is no hiring history for the job, the petitioner cannot establish that it normally requires 
a specialty degree or its equivalent for the position, as required for the position to meet the third 
alternative criterion of a specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Finally, the record does not establish that the duties of the human resources specialist are so specialized 
and complex that the knowledge required to perform them is usually associated with a baccalaureate 
degree in a specific specialty. Based on the information in the Handbook and the evidence of record - 
including the petitioner's line of business, scale of operations, and description of the proffered position - 
the AAO concludes that the duties of the position could be performed by an experienced individual 
without 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). 
WAC 02 244 5 1266 
Page 6 
For the reasons discussed above, the record fails to demonstrate that the proffered position meets any of 
the criteria enumerated at 8 C.F.R. 3 214.2(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 lOl(a)(lS)(H)(i)(b) of the Act, 
8 U.S.C. 5 1 lOl(a)(lS)(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.