dismissed H-1B Case: Restaurant Management

identifiing data deleted Do 
pevmt clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
' FILE: SRC 04 242 51773 Office: TEXAS SERVICE CENTER 
PETITION: Petition for a Nonirnmigrant 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 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 restaurant. It seeks to employ the beneficiary as a general manager and to classify him as a 
nonimrnigrant 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. § 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. The petitioner filed a motion to reopen or reconsider, and in the 
alternative an appeal, which was considered by the director as untimely. The director treated the appeal as a 
motion to reopen and denied on the ground that the petitioner failed to overcome the basis of the denial. The 
director subsequently reopened the proceeding and forwarded the petitioner's appeal to the AAO. The 
director's decision of November 17, 2005 denying the petition will be withdrawn upon request of the director, 
and the appeal filed by the petitioner will be considered. 
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. 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet one 
of the following criteria: 
(I) 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. 
3 214.2(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 director's decision; and 
SRC 04 242 5 1773 
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(5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its entirety 
before issuing its decision. 
The petitioner describes itself as a Mexican restaurant with a seating capacity of 250 and nightly musical 
entertainment. The petitioner states that it was established in 2003, has over 40 employees, and that its gross 
income during its first nine months of operation amounted to nearly $2 million. Federal income tax returns in 
the record list the petitioner's gross receipts at $1,919,155 in 2003 and $2,125,141 in 2004. The petitioner 
proposes to hire the beneficiary for three years, at a salary of $36,400/year, to serve as its general manager. 
The duties of the position are described as follows in a letter accompanying the petition: 
[The beneficiary] will be responsible for planning and coordinating the development and 
direction of Ole! Restaurants, Inc. Reporting to the owners, he will also manage daily 
operations, supervise employees, monitor the restaurant's financial transactions, and direct 
payroll records. 
In its response to the RFE the petitioner provided a further description of the job duties, in the form of the 
resume of the individual currently in the proffered position, whom the beneficiary would replace: 
Responsible for monitoring management of restaurant's 42 employees' daily duties and 
customer service. In charge of financial planning, expansion and capital investments. 
Handle all relationships with accountants, lawyers, government entities, etc. Maintain budget 
(including attracting and contracting with outside talent), and executive controls on inventory, 
food quality and preparation. Oversee the recruitment of employees and restaurant 
advertising. Resolve conflicts. 
The petitioner claims that the minimum educational requirement for the proffered position is a baccalaureate 
degree in hospitality management or a related specialty. The beneficiary is qualified for the job, the petitioner 
declares, by virtue of his high school education in Venezuela, subsequent training programs, and twelve years 
of experience as a general manager in the restaurant industry. 
In her decision the director cited information in the Department of Labor (D0L)'s Occupational Outlook 
Handbook (Handbook) on food service managers indicating that individuals with a variety of educational 
levels and relevant work experience could be hired for such positions. The record did not show that a 
baccalaureate or higher degree in a specific specialty is required to perform the duties of the proffered 
position, the director determined, or that the position qualifies as a specialty occupation under any other 
criteria enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
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 asserts that the 
director ignored evidence of its incumbent general manager's educational credentials, which include a degree 
in accounting from a Venezuelan university. Counsel contends that the duties of the general manager position 
at issue in this position are a more complicated type of food service manager that requires a specialty degree. 
Counsel quotes sections of the Handbook's entry on food service managers discussing the role that a degree 
in food service management can play in enhancing applicants' hiring prospects for restaurant manager 
positions. In counsel's view, the director's decision failed to adequately explain the basis for denying the 
petition. 
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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 115 1, 1165 (D.Minn. 1999) (quoting HirdBlaker 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. 
Food service managers, including restaurant general managers, are described as follows in the DOL 
Handbook, 2006-07 edition, at 45-46: 
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. 
In most full-service restaurants . . . the management team consists of a general manager, one 
or more assistant managers, and an executive chef. [Emphases in the original.] . . . . 
One of the most important tasks of food service managers is assisting executive chefs as they 
select successful menu items . . . . 
Managers or executive chefs estimate food needs, place orders with distributors, and schedule 
the delivery of fresh food and supplies . . . . 
Managers interview, hire, train, and when necessary, fire employees . . . . 
Food service managers ensure that diners are served properly and in a timely manner. They 
investigate and resolve customers' complaints about food quality or service . . . . They make 
sure that health and safety standards and local liquor regulations are obeyed. 
In addition to their regular duties, food service managers perform a variety of administrative 
assignments, such as keeping employee work records, preparing the payroll, and completing 
paperwork to comply with licensing laws and reporting requirements of tax, wage and hour, 
unemployment compensation, and Social Security laws . . . . Managers also maintain records 
of supply and equipment purchases and ensure that accounts with suppliers are paid. 
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Managers tally the cash and charge receipts received and balance them against the record of 
sales. They are responsible for depositing the day's receipts at the bank or securing them in a 
safe place. 
In accord with the director's decision, the AAO determines that the duties of the proffered position reflect the 
duties of a food services manager, in particular a restaurant general manager. With regard to the educational 
requirements for the occupation, the Handbook states, in pertinent part, 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 . . . . [Gleneral managers need prior restaurant experience, usually as assistant 
managers. 
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 institutions offer 
programs in the field leading to an associate degree or other formal certification . . . . 
Id. at 46-47. What the Handbook makes clear is that, even if many food service managers, including 
restaurant general managers, have baccalaureate degrees in hospitality management or a related specialty, 
there is ample opportunity to enter the occupation with credentials short of a four-year baccalaureate degree in 
a specific specialty, such as an associate degree, vocational training, and relevant work experience. 
Accordingly, a restaurant general manager 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 such a position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), there is 
no evidence in the record that other restaurants comparable to the petitioner require their general managers to 
have a baccalaureate degree in a specific specialty. The petitioner has not shown 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). 
Though the petitioner asserts that the general managerial duties of the proffered position exceed those of a 
typical food services manager and distinguish the position from the Handbook's description of a food service 
manager, the evidence of record does not support that claim. The petitioner contends that its general manager 
acts as its chief financial officer and chief operating officer. However, neither the petitioner's original 
description of the position nor the incumbent's resume describing his duties provides any substantive details 
demonstrating that the financial and operational tasks inherent in the position are beyond the scope of a 
typical restaurant general manager. The duties of the proffered position are described by the petitioner and 
the incumbent employee in broad, general language - i.e., "responsible for planning and coordinating the 
SRC 04 242 5 1773 
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development and direction of [the business]" and "in charge of financial planning, expansion and capital 
investments" and responsible for "handl[ing] all relationships with accountants, lawyers, government entities, 
etc." - that provides little indication of the complexity and specialization of the tasks the beneficiary would 
perform. As far as the record shows, neither the type of restaurant involved in this petition, nor its scale of 
operation, food offerings, or entertainment, are unique in the restaurant industry. Nor does the record show 
that the general manager's duties are unusually specialized or complex, such that they could not be performed 
by an individual with less than baccalaureate level education in hospitality management or a related specialty. 
Based on the evidence of record, the AAO determines that the proffered position is not so complex or unique 
that it can only be performed by an individual with a baccalaureate degree in a specific specialty, as required 
to qualify as a specialty occupation under the second prong of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2), or that the 
duties of the position are not so specialized and complex that they require at least baccalaureate level 
knowledge in a specific specialty, as required to qualify as a specialty occupation under 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A)(4). 
With respect to the third alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), 
the petitioner claims that its incumbent general manager has the equivalent of a bachelor of arts degree in 
hospitality management. The record includes copies of that individual's resume, degree in public accounting 
from a Venezuelan university, and an evaluation of his work experience which concludes that seventeen years 
in the restaurant industry as an owner in Venezuela and a general manager in the United States are equivalent 
to a bachelor's degree in hospitality management. There is no evidence in the record, however, such as pay 
statements or quarterly wage and withholding reports, documenting the referenced individual's employment 
by the petitioner. Simply going on record without supporting documentation does not satisfy the petitioner's 
burden of proof. See Matter of SofSici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
Furthermore, the AAO notes that the evaluation of the incumbent general manager's work experience, which 
is authored by an associate professor of hospitality and service management at the Rochester Institute of 
Technology (R1T)'s School of Food, Hotel and Travel Management, is submitted by the petitioner as 
evidence of the incumbent's qualification to perform services in a specialty occupation in accordance with 
8 C.F.R. 3 214.2(h)(4)(iii)(C)(4) and 8 C.F.R. 5 214.2(h)(4)(iii)(D). As the petitioner relies on the 
incumbent's foreign credentials to demonstrate that it normally requires a specialty degree or its equivalent 
for its general manager position, the AAO will determine whether the credentials evaluation establishes that 
the incumbent has earned such a degree or its equivalent. The pertinent regulations provide as follows:' 
To qualify to perform services in a specialty occupation, the alien must meet one of the following criteria: 
(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 alien is qualified under 8 C.F.R. 5 214.2(h)(4)(iii)(C)(4), 8 C.F.R. 
5 2 14.2(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 andlor experience in the specialty at an accredited college or university 
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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 
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 ' 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. 
1 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: (I) 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. 5 214.2(h)(4)(ii). 
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The first and fifth criteria - 8 C.F.R. 3 214.2(h)(4)(iii)(D)(l) and (5) - are the only ones applicable to the 
instant petition. 
With respect to 8 C.F.R. 5 214.2(h)(4)(iii)(D)(l), the credentials evaluation lacks crucial attributes that are 
prescribed in the regulation. It fails to demonstrate that the evaluator has the authority to award academic 
credit for work experience. Though the evaluator declares that he has "the authority to evaluate foreign 
educational credits, experience, training, and/or courses taken at other U.S. or international universities, and 
to determine whether credit would be awarded to a student by the University," the statement is not 
supplemented by documentary evidence that the university with which the professor is affiliated has a 
program for granting academic credit based on an individual's training and/or work experience. No letter has 
been submitted by a qualified official at RIT confirming that the institution has such a program. 
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 in 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, lnc., 19 I&N Dec. 791, 795 (Cornrn. 1988). For the 
reasons discussed above, the evaluation from the professor at RIT is not persuasive evidence that the 
incumbent general manager's work experience in Venezuela is equivalent to a bachelor of science in business 
administration, with a major in management, from a U.S. college or university, as required under 8 C.F.R. 
5 214.2(h)(4)(iii)(D)(l) for the incumbent to be qualified to perform services in a specialty occupation under 
8 C.F.R. 5 214.2(h)(4)(iii)(C)(4). 
With respect to 8 C.F.R. 5 214.2(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 record indicates that the petitioner's incumbent general manager does not have any college-level 
education. Thus, the alien would have to demonstrate twelve years of progressively responsible work 
experience in areas related to the specialty to have the equivalent of a bachelor's degree in hospitality 
management. The only evidence of the restaurant experience discussed by the evaluator is the alien's resume 
stating that he owned a restaurant in Caracas, Venezuela from 1986 to 2002, and that he began working for 
the petitioner as a general manager in April 2003. There is no evidence that the alien was or is working with 
peers, supervisors, or subordinates who have a bachelor's or master's degree, or its equivalent, in hospitality 
management or a related specialty. Nor is there any documentation in the record showing that the alien has 
been recognized for his expertise in hospitality management or a related specialty. Thus, the record does not 
establish that the alien has any specialized work experience in restaurant management positions that can be 
counted toward a degree equivalence in the hospitality management or a related specialty, as required by 
8 C.F.R. 5 214.2(h)(4)(iii)(D)(5) for the alien to be qualified under 8 C.F.R. 5 214.2(h)(4)(iii)(C)(4) to 
perform services in the specialty occupation. 
Based on the foregoing analysis, the AAO determines that even if the incumbent general manager's 
employment by the petitioner were proved, the record fails to establish that the petitioner has an established 
policy of requiring its general manager to have a bachelor's degree or its equivalent in hospitality 
management or a related specialty. The AAO concludes 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 petitioner does not normally require 
a specialty degree or its equivalent for the proffered position. 
1. 
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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. 
9 1.1 0 1 (a)( 1 S)(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.