dismissed H-1B Case: Restaurant Management

. . 
 U.S. Department of Homeland Security 
identifying dats del'1:M 
' invasion of pesonal privaQ 
20 ~asi. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 239 529 12 Office: CALIFORNIA SERVICE CENTER Date: 
 0 22006 
PETITION: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 101 (a)(l5)(H)(i)(b) of ?he 
Immigration and Nationality Act, 8 U.S.C. 5 1 101 (a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
, 
INSTRUCTIONS : 
1 
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 fiuther inquiry must be made to that office. 
/ R%l%&nn,~e Administrative Appeals 
WAC 04 239 52912 
Page 2 
DISCUSSION: The director 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 is a Chinese restaurant chain that seeks to employ the beneficiary as an operations-general 
manager. The petitioner, therefore, endeavors to extend the beneficiary's nonimmigrant classification as a 
worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the ~mmigration and Nationality 
Act (the Act), 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b). 
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 RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
The director denied the petition on the basis of his determinations that the petitioner had failed to establish 
that the proposed position qualifies for classification as a specialty occupation and that the beneficiary is 
qualified to serve in a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1184(i)(l), defines tlie 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 8 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavor including, but not limited to, architecture, 
engineering, mathematics, physical sciences, social sciences, medicine and health, education, 
business specialties, accounting, law, theology, and the arts, and which requires the attainment of 
a bachelor's degree or higher in a 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 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 
WAC 04 239 52912 
Page 3 . 
(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 proposed position. 
In its August 18, 2004 letter of support, the petitioner stated that the duties of its proposed position would 
include: assessing and analyzing the management of food and beverage product objectives; identifying 
problems and making recommendations for causes of actions; developing and implementing systems for food 
and beverage management and delivery systems and improving efficiency of those systems; evaluating and 
controlling food and labor costs; maintaining overall responsibility for developing and implementing 
marketing programs and strategies for ensuring increased sales, profitability, and market share for the 
assigned location; studying statistical data, customer preferences, and marketing strategies in the field of 
restaurant management to provide efficiency of operation; monitoring the financial status of the restaurant; 
planning and taking corrective action; reviewing the store's budget and proposing adjustments based on 
business trends as needed; conducting operational effectiveness reviews to ensure that functional or project 
systems are applied and functioning as designed; analyzing financial reports including profit and loss 
statements, general ledger, etc., as well as marketing reports on spreadsheets; charting and documenting 
findings of studies and preparing recommendations for the implementation of systems and procedures to 
corporate headquarters. While the beneficiary is currently working at the petitioner's restaurant at them 
Mall in South Pasadena, California, the petitioner proposes relocating him to a location in Henderson, 
Nevada. 
On appeal, counsel contends that the director erred in denying the petition, and that the proposed position 
qualifies for classification as a specialty occupation. 
In determining whether a proposed 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 the 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
In his denial, the director likened the duties of the proposed position to those of food service managerssand 
general managers or executives. On appeal, counsel contends that the duties of the proposed position are 
more specialized and complex than those of food service managers and general managers or executives. 
In its discussion of the duties of food service managers, the 2006-2007 edition of the Handbook states the 
following: 
Food service managers are responsible fbr 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, 
WAC'O~ 239 52912 
Page 4 , 
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. 
Managers or executive chefs estimate food needs, place orders with distributors, and 
schedule the delivery of fresh food and supplies. They plan for routine services or 
deliveries, such as linen services or the heavy cleaning of dining rooms or kitchen 
equipment, to occur during slow times or when the dining room is closed. Managers also 
arrange for equipment maintenance and repairs, and coordinate a variety of services such 
as waste removal and pest control. Managers or executive chefs receive deliveries and 
check the contents against order records. They inspect the quality of fresh meats, poultry, 
fish, hits, vegetables, and baked goods to ensure that expectations are met. They meet 
with representatives from restaurant supply companies and place orders to replenish 
stocks of tableware, linens, paper products, cleaning supplies, cooking utensils, and 
furniture and fixtures. 
Managers must be good communicators. They need to speak well, often in several 
languages, with a diverse clientele and staff. They must motivate employees to work as a 
team, to ensure that food and service meet appropriate standards. Managers also must 
ensure that written supply orders are clear and unambiguous. 
Managers interview, hire, train, and, when necessary, fire employees. Retaining good 
employees is a major challenge facing food service managers. . . . 
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. Some of this work may be delegated to an assistant manager or bookkeeper, or it 
may be contracted out, but most general managers retain responsibility for the accuracy 
of business records. Managers also maintain records of supply and equipment purchases 
and ensure that accounts with suppliers are paid. 
Technology influences the jobs of food service managers in many ways, enhancing 
efficiency and productivity. . . . 
Food service managers use the Internet to track industry news, find recipes, conduct 
market research, purchase supplies or equipment, recruit ~mployees, and train staff. 
The Handbook states the following with regard to the duties and responsibilities of general and operations 
managers (this passage is contained within the Handbook's discussion of the "top executives" 
occupational grouping): 
WAC 04 239 52912 
Page 5 
All organizations have specific goals and objectives that they strive to meet. 
 Top 
executives devise strategies and formulate policies to ensure that these objectives are met. 
Although they have a wide range of titles-such as chief executive officer, chief 
operating officer, board chair, president, vice president, school superintendent, county 
administrator, or tax cornrnissioner-all formulate policies and direct the operations of 
businesses and corporations, public sector organizations, nonprofit institutions, and other 
organizations. . . . 
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 any one area of management or 
administration, such as personnel, purchasing, or administrative services. In some 
organizations, the duties of general and operations managers may overlap the duties of 
chief executive officers. 
The AAO agrees with the director that the duties of the petitioner's proposed position are encompassed 
within the Handbook's discussion of these two occupational groupings. As such, the AAO next turns to 
the Handbook's discussion of the educational qualifications required for entry into these fields. 
In its discussion of the educational requirements for food service managers, the Handbook offers the 
following information: 
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 2- and 4-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 interest and aptitude. Some restaurant and food service manager 
positions-particularly self-service and fast-food-are filled by promoting experienced 
food and beverage preparation and service workers. Waiters, waitresses, chefs, and 
fast-food workers demonstrating potential for handling increased responsibility 
sometimes advance to assistant manager or management trainee jobs. Executive chefs 
need extensive experience working as chefs, and general managers need prior restaurant 
experience, usually as assistant managers. 
A bachelor's degree in restaurant and food service mhagement provides particularly 
strong preparation for a career in this occupation. A number of colleges and universities 
offer 4-year programs in restaurant and hospitality management or institutional food 
service management; a growing number of university programs offer graduate degrees in 
hospitality management or similar fields. For those not interested in pursuing a 4-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. Both 
2- and 4-year programs provide instruction in subjects such as nutrition, sanitation, and 
food planning and preparation, as well as accounting, business law and management, and 
computer science. Some programs combine classroom and laboratory study with 
WAC 04 239 52912 
Page 6 
internships providing on-the-job experience. In addition, many educational institutions 
offer culinary programs in food preparation. Such training can lead to a career as a cook 
or chef and provide a foundation for advancement to an executive chef position. . . . 
Thus, the Handbook explains unequivocally that a bachelor's degree is not the normal minimum 
requirement for entry into the proposed position, and its 'findings do not support the assertion that a 
bachelor's degree is required for entry. The statement that a bachelor's degree provides "particularly 
strong preparation" for a position or that employers ';prefer" to hire candidates with such a degree is not 
synonymous with the "normally required" standard imposed by the regulation. 
The Handbook reports the following educational requirements for those seeking employment as a general 
or operations manager: 
I 
The formal education 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. . . . 
Many top executive positions are filled fiom 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. However, many 
companies prefer that their top executives have specialized backgrounds and, therefore, 
hire individuals who have been managers in other organizations. 
As the Handbook finds that general or operations manager positions generally impose no specific degree 
requirement on individuals seeking employment, the petitioner cannot establish that its proposed position, 
which is ciosely aligned to that of a general or operations manager, is one that normally requires the 
beneficiary to hold a baccalaureate or higher degree, or its equivalent, in a specific specialty. 
The statement that many top executives have college degrees is not synonymous with the "normally 
required" standard imposed by this criterion. While the Handbook indicates that top management positions 
may be filled by individuals with a broad range of degrees, its subsequent discussion of the training and 
education necessary for such employment clearly states that companies also hire executives based on 
lower-level experience within their own organizations or management experience with another business. 
However, even if the Handbook had indicated that degrees in business administration and the liberal arts were 
normally required for employment as a general or operations manager, the petitioner could not use them to 
establish its proposed position as a specialty occupation under the first criterion. When a range of degrees, 
e.g., the liberal arts, or a degree of generalized title without further specification, e.g., business administration, 
suffices for a job, the position does not qualify as a specialty occupation. See Matter of Michael Hertz 
Associates, 19 I&N Dec. 558 (Comm. 1988). To prove that a job requires the theoretical and practical 
application of a body of specialized knowledge as requird by Section 214(i)(l) of the Act, a petitioner must 
establish that the position requires the attainment of a bachelor's or higher degree in a specialized field of 
study. As noted previously, CIS interprets the degree requirement at 8 C.F.R. $ 214.2(h)(4)(iii)(A) to require 
a degree in a specific specialty that is directly related to the proposed position. 
Therefore, the proposed position does not .qualify as a specialty occupation under 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(I). 
WAC 04 239 52912 
Page 7 
Nor does the proposed position qualify as a specialty occupation under either prong of 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The first prong of this regulation requires a showing that a specific degree requirement is common to the 
industry in parallel positions among similar organizations. The AAO has reviewed the job po&ings 
submitted by counsel. Counsel, however, has failed to consider the specific requirements at 8 C.F.R. 5 
214.2(h)(4)(iii)(A)(2) for establishing a baccalaureate or higher degree as an industry norm. To meet the 
burden of proof imposed by the regulatory language, a petitioner must establish that its degree requirement 
exists in positions that are parallel to the proffered position and found in organizations similar to the 
petitioner. 
Aramark, the ~niveisit~ of Texas M.D. Anderson Cancer Center, Marriott International, and the Crow 
Canyon Country Club do not operate within a business model similar to that of the petitioner. The only 
job postings that may be considered to be from similar organizations are those from Wendy's and Dairy 
Queen. However, advertisements from two companies are too few to establish an industry standard. 
Moreover, the position described in the job posting from Dairy Queen is not a "parallel position" to the 
one proposed by the petitioner. The position at Dairy Queen involves developing strategies to create new 
product lines, championing new product launches, and leading test marketing programs. Such duties are 
not present in the petitioner's proposed position. . 
Nor do all the job postings establish that a four-year degree is required for the position. For example, the 
Crow Canyon Country Club will accept five years of club management in lieu of a degree, and the 
University of Texas M.D: Anderson Cancer Center will also substitute experience for a degree. 
As such, the petitioner has not demonstrated that its degree requirement exists in parallel positions among 
similar organizations. 
The AAO also concludes that the record does not establish that the proposed position is a specialty 
occupation under the second prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), which requires a showing that the 
position is so complex or unique that it can only be performed by an individual with a degree. It finds no 
evidence that would support such a finding, as the position proposed in the petition is very similar to the 
food service manager and 'general or operations manager positions described in the Handbook. 
Accordingly, the petitioner has not established its proposed position as a specialty occupation under either 
prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The AAO next turns to the criterion at 8 C.F.R. 4 214.2(h)(4)(iii)(A)(3), which requires that the petitioner 
demonstrate that it normally requires a degree or its equivalent for the position. To determine a 
petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including the names and dates of employment, of those 
employees with degrees who previously held the position, and copies of those employees' diplomas. 
Counsel and the petitioner contend that the proposed position qualifies as a specialty occupation under 
this criterion. On appeal, counsel contends that the petitioner has required that candidates for this 
position have been required to possess at least a bachelor's degree since 2002. 
WAC 04 239 52912 
Page 8 
However, this statement conflicts with a statement from the petitioner: the petitioner stated in its January 
25, 2005 response to the director's request for additional evidence that 70% percent of its managers hired 
since 2002 have held bachelor's degree. 
That 30%, or nearly one-third, of such individuals hired since 2002 do not possess a bachelor's degree is 
not indicative of a normal requirement for a degree or its equivalent for the position. Rather, it is 
indicative of a preference for a degree. As noted previously in this discussion, employer preferences are 
not synonymous with educational requirements that are necessitated by the type and level of knowledge 
actually required to perform a position. 
Moreover, the AAO notes that counsel has submitted no evidence to document its assertion that the 
employer normally requires a degree for the position. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503,506 (BIA 1980). 
Accordingly, the proposed position does not qualify as a specialty occupation under the third criterion of 
8 C.F.R. 3 214.2(h)(4)(iii)(A). 
The fourth criterion, 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4), requires the petitioner to establish that the nature of 
the proposed position's duties is so specialized and complex that the knowledge required to perform them 
is usually associated with the attainment of a baccalaureate or higher degree in the specialty occupation. 
To the extent they are described in the record, the duties of the proposed position do not support a 
conclusion that they would require the beneficiary to possess at least a bachelor's degree level of 
knowledge in a specific specialty. There has been no demonstration that the duties of the proposed 
position are more specialized or complex than the food service manager and general operation manager 
positions described in the Handbook, which, as noted previously, do not require a baccalaureate degree or 
its equivalent in a specific specialty. Therefore, the proposed position does not qualify as a specialty 
occupation under the fourth criterion. 
Lastly, the Ah0 turns to counsel's submission on appeal of an advisory opinion from 
hh 
an associate professor at the University of Nevada at Las Vegas. Professor concludes t at t e 
duties of the proposed position are similar to those of an operations research analyst, and that they require 
an individual with at least a bachelor's degree to perform them. 
. . 
However, an inadequate factual foundation to support Professor 
 opinions has been established. 
He does not note the location or size of the petitioner, nor does he indicate whether he reviewed company 
information about the petitioner, visited its site, reviewed any work products that are produced by 
individuals working in positions similar to the position proposed here, or interviewed anyone affiliated 
with the petitioner. The extent of the professor's knowledge of the proposed position is, therefore, 
questionable. Furthermore, the professor's submission is skeletal and conclusory. It states opinions, lists 
generalized duties, and broadly references attachments, but it does not explain the analysis, if any, that the 
professor applied to the duties that he listed. Thus, the professor has not established the reliability and 
accuracy of his pronouncements. His submission therefore is not probative of any of the specialty 
occupation criteria. The AAO may, in its discretion, use as advisory opinion statements submitted as 
expert testimony. However, where an opinion is not in accord with other information or is in any way 
,.* 
WAC 04 239 52912 
Page 9 
' questionable, the AAO is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm. 1988). 
Moreover, even if the AAO were to accept this evaluation, the petition could not be approved. According 
to information contained in the Handbook, while the occupation of an operations research analyst is 
normally a specialty occupation, normally requiring those seeking entry-level employment to possess a 
master's degree in operations or a closely related field, such as computer science, engineering, business, 
mathematics, information systems, or management science, coupled with a bachelor's degree in computer 
science or a quantitative discipline such as economics, mathematics, or statistics, the beneficiary does not 
possess a master's degree. He would therefore be unqualified to fill such a position. 
The proposed position does not qualify for classification as a specialty occupation under any of the 
criteria set forth at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(I), (2), (3), and (4), and the petition was properly 
denied. As the proposed position is not a specialty occupation, the beneficiary's qualifications to perform 
its duties are immaterial. Accordingly, the AAO will not disturb the director's denial of the petition 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 3 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.