dismissed H-1B Case: Restaurant Management

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identifPing data deleted to 
prevent dearly unwarranted 
invasion sf wmmal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 144 53321 Office: CALIFORNIA SERVICE CENTER Date: JAN 2 7 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 1 10 1 (a)(l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
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 further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 144 53321 
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DISCUSSION: The director of the service center denied the nonirnmigrant 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 food services restaurant that seeks to employ the beneficiary as a restaurant general 
manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonirnmigrant worker in a 
specialty occupation pursuant to section 10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel states that the proposed position is a specialty occupation and submits additional and previously 
submitted evidence. 
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. 
Pursuant to 8 C.F.R. 214.2@)(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. 
8 214.2@)(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. 
WAC 04 144 53321 
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The record of proceeding before the AAO contains: (I) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a restaurant general manager. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's 
support letter; and the petitioner's response to the director's request for evidence. According to this evidence, 
the beneficiary would perform duties that entail managing, directing daily operations, and coordinating 
service and financial activities; reviewing and estimating food consumption, food and beverage costs, and 
requisitions; determining and ascertaining that sufficient items are ordered with suppliers; inspecting food 
service facilities to ensure that equipment and buildings meet the petitioner's standard and state and local 
health laws; inspecting prepared food to maintain the petitioner's reputation, high quality standards, and 
sanitation regulations; analyzing information concerning operations such as daily food sales, patron 
attendance, and labor costs to prepare the budget, and maintain cost control of the facility operations; 
interfacing with financial institutions, architects, the landlord, accountants, and lawyers; meeting with 
restaurant suppliers' sales representatives; maintaining records through use of a point of sale (POS) 
computerized inventory system; overseeing financial transactions and monitoring the budget to ensure 
efficient operation and that expenditures stay within budgeted limits; analyzing the popularity of dishes, the 
amount of unserved food, and the need to change the menu to increase profits and minimize waste; preparing 
budgetary reports; conferring with kitchen management to plan menus and manage the staff of hosts and 
waiters in day-to-day operations; investigating and resolving food or service quality complaints; managing 
marketing and advertising and representing the petitioner at industry conferences and local promotional 
events; arranging for advertisements in newspapers, publications, and telephone and tourist directories; 
contacting media sources to negotiate promotional advertisement campaigns; negotiating contracts with 
delivery services, wholesale catering vendors, and customers; conducting research programs to improve 
existing practices and services and to attract new customers; recruiting and hiring personnel; assigning duties 
and schedules; and overseeing training. For the proposed position the petitioner requires a baccalaureate 
degree in the culinary arts or restaurant or hospitality management. 
The director stated that the proposed position resembles a food service manager and general manager as those 
occupations are depicted in the Department of Labor's (DOL) Occupational Outlook Handbook (the 
Handbook), and that the Handbook conveys that those occupations do not require a baccalaureate degree in a 
specific specialty. The director found the submitted letters fiom unpersuasive in 
establishing that the proposed position requires a baccalaureate degree in a specific specialty. The director 
stated that the petitioner's business did not extend beyond the scope of the local community and that its 
services are limited to the neighborhood or immediate vicinity of its operation or to a particular part of a 
metropolitan area. The director concluded that the petitioner lacks an extensive or complex customer base 
that would require the services of a general manager with a baccalaureate degree in a relevant field, and that 
the general manager would not need to direct a substantial state, regional, national, or international business 
network of staff to provide the petitioner's product or service. The director stated that no evidence establishes 
that the petitioner normally requires a degree or its equivalent for the proposed position. The director 
0 WAC 04 144 53321 
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discussed Defensor v. Meissner, 201 F. 3d 384, 387 (5" Cir. 2000). According to the director, the petitioner 
failed to distinguish the proposed position from that of a food service manager and general manager, which are 
occupations that do not require a baccalaureate degree in a specific specialty. 
On appeal, counsel asserts that CIS did not properly consider the submitted.evidence which shows that the 
proposed position is a specific specialty, and counsel refers to information in the Dictionary of Occupational 
Titles (DOT); an excerpt from Matthew Bender Immigration Law and Procedure, the Occupational 
Information Network Online (O*Net), and the Handbook; an expert opinion letter from 
the dean of the College of Culinary Arts at Johnson & Wales Universi an 
Johnson & Wales University website; an expert opinion letter from -of the American 
Culinary Institute and an excerpt from the American Culinary Institute website; reviews about the petitioner's 
reputation; and the petitioner's April 14, 2004 support letter. Counsel asserts that the petitioner, a nationally 
renowned Indian cuisine restaurant, has historically employed university-trained professionals for this and 
similar positions, and that CIS has previously granted H-1B petitions to this restaurant group for the same and 
similar positions. Counsel states that the regulations do not support the director's statement that the direction 
of "a substantial state, regional, national, or international business network staff' is needed to just@ the 
requirement of a degree in a specific specialty. Counsel states that the petitioner met the burden of proof, 
which is a preponderance of the evidence, in establishing that the proposed position qualifies as a specialty 
occupation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
$ 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
Counsel asserts, without submitting any supporting evidence, that CIS has already determined that the 
proffered position is a specialty occupation since CIS has approved other, similar petitions in the past. The 
statements of counsel on appeal or in a motion, however, are not evidence and thus are not entitled to any 
evidentiary weight. See INS vs. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503 (BIA 1980). 
The AAO next considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria include: whether the Handbook reports that the industry 
requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from fms 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 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker COT. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
Counsel's reference to and assertions about the relevance of information from the DOT and O*Net is not 
persuasive. Neither an SVP rating nor a Job Zone category indicates that a particular occupation requires the 
attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty as a minimum for 
WAC 04 144 53321 
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entry into the occupation. An SVP rating and Job Zone category are meant to indicate only the total number 
of years of vocational preparation required for a particular position. Neither classification describes how 
those years are to be divided among training, formal education, and experience, nor specifies the particular 
type of degree, if any, that a position would require. 
In determining whether a 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. 
In the denial letter the director stated that the petitioner's business did not extend beyond the scope of the 
local community; that its services are limited to the neighborhood or immediate vicinity of its operation or to 
a particular part of a metropolitan area; and that the petitioner lacks an extensive or complex customer base 
that would require the services of a general manager with a baccalaureate degree in a relevant field, and that 
the general manager would not need to direct a substantial state, regional, national, or international business 
network of staff to provide the petitioner's product or service. The AAO finds that the director's observations 
are not relevant in determining whether the proposed position qualifies as a specialty occupation under the 
Act and the regulations. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. The Handbook reveals that the proposed position's duties are a combination of 
those of a chef and a food service manager. The Handbook states that an executive chef determines serving 
sizes, plans menus, orders food supplies, and oversees latchen operations to ensure uniform quality and 
presentation of meals. The Handbook also conveys that an executive chef may be "in charge of all food 
service operations and also may supervise the many kitchens of a hotel, restaurant group, or corporate dining 
operation." As described in the Handbook, executive chefs who work in fine restaurants require many years 
of training and experience. Some chefs start their training in high school or post-high school vocational 
programs. Others receive formal training through independent cooking schools, professional culinary 
institutes, or 2- or 4-year college degree programs in hospitality or culinary arts. Many are trained on the job. 
The Handbook states that food service managers assist executive chefs in selecting successful menu items. It 
also states: 
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 lutchen, 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- 
I WAC 04 144 53321 
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resource functions of running the business, including recruiting new employees and 
monitoring employee performance and training. 
The Handbook indicates that employers do not require food service managers to have a baccalaureate degree 
in a specific specialty. It reports that national and regional restaurant chains recruit management trainees 
from 2- and 4-year college hospitality management programs. Although restaurant chains prefer to hire 
candidates with degrees in restaurant and institutional food service management, they often hire graduates 
with degrees in other fields. Furthermore, waiters, waitresses, chefs, and fast-food workers sometimes 
advance to assistant manager or management trainee jobs. Both 2- and 4-year programs, the Handbook states, 
provide instruction in "nutrition, sanitation, and food planning and preparation," and "accounting, business 
law and management, and computer science." 
Counsel asserts that the submitted restaurant reviews show that the petitioner is a nationally renowned Indian 
cuisine restaurant; that the petitioner requires the services of a restaurant general manager with a 
baccalaureate degree in the culinary arts or restaurant or hospitality management; and that the Handbook's 
discussion about food service managers, and letters from emonstrate - 
this. 
The PLAO does not concur with counsel's assertion as the Handbook does not indicate that employers require 
a baccalaureate degree in a specific specialty for a chef or a food service manager, which are occupations that 
are similar to the proposed position. The Handbook conveys that executive chefs who work in fine 
restaurants, such as the petitioning entity, require many years of training and experience. The Handbook does 
not indicate that employers require that a chef possess a baccalaureate degree in a specific specialty. For food 
service managers, the Handbook relays that employers do not require a baccalaureate degree in a specific 
specialty, as indicated above. Restaurant chains prefer to hire candidates with degrees in restaurant and 
institutional food service management, but they often hire graduates with degrees in other fields. Waiters, 
waitresses, chefs, and fast-food workers sometimes advance to assistant manager or management trainee jobs. 
Both 2- and 4-year programs, the Handbook reports, provide instruction in areas required of the proposed 
position: "nutrition, sanitation, and food planning and preparation," and "accounting, business law and 
management, and computer science." 
The letters from re assertions in the letters conflict 
with the Handbook's information. In a July 10,2003 letter sserts: 
Although historically many [clhefs and managers learned their skills in various related jobs, 
the leading hotels and fine restaurants in the industry in American today routinely require 
applicants to hold at least a relevant bachelor's degree for management positions. This is 
because of the increased complexity of a profession that requires a greater degree of 
understanding in financial management, computerized inventory and delivery control 
systems, human resource skills, and participation in business planningtoperations at a 
management level as well as the complex field of cooking. 
WAC 04 144 53321 
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The Handbook conveys "technology influences the jobs of food service managers." The Handbook also 
states: 
Many restaurants use computers to track orders, inventory, and the seating of patrons. Point- 
of-service (POS) systems allow servers to key in a customer's order, either at the table, using 
a hand-held device, or from a computer terminal in the dining room. The same system . . . 
tracks sales. To minimize food costs and spoilage, many managers use inventory-tracking 
software to compare the record of sales from the POS with a record of the current inventory. 
Some establishments enter an inventory of standard ingredients and suppliers into their POS 
system. When supplies of particular ingredients run low, they can be ordered directly from 
the supplier using preprogrammed information. Computers also allow restaurant and food 
service managers to keep track of employee schedules and paychecks more efficiently. 
The knowledge that is required of a food service manager, as described by 
d 
is encompassed 
within the duties of a food service manager, which is an occupation that oes not require a baccalaureate 
degree in a specific specialty. The Handbook describes how food service managers use computer systems 
and programs in performing their duties; how food service managers must "be good communicators"; and 
how 2- and 4-year programs would provide instruction in areas concerning the proposed position such as 
"nutrition, sanitation, and food planning and preparation," and "accounting, business law and management, 
and computer science." Thus, a food service manager, an occupation that does not require a baccalaureate 
degree, possesses the kind of knowledge that is described by The AAO has already 
discussed the duties of a chef and the Handbook's statement that this occupation, ever 
fine restaurant, does not require a baccalaureate degree. The weight of 1 
by the Handbook's information. With respect to the assertions of 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). CIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. However, where an opinion is not in accord with other information 
or is in any way questionable, CIS is not required to accept or may Dve less weight to that evidence. Matter 
of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
The job duties of the [proposed] position demonstrate the need for the bachelor's degree. In 
my opinion, these duties and the degree requirement are both normal within the industry 
among employers of a similar stature. 
The Handbook's information, as discussed above. reveals that the wo~osed Dosition does not reauire a . . 
baccalaureate degree in a specific specialty. The value of assertion is therefore diminished by 
the Handbook's information. In addition, with regard to-assertions, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of 
I WAC 04 144 53321 
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California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Again, CIS may, in its discretion, use as advisory 
opinions statements submitted as expert testimony. However, where an opinion is not in accord with other 
information or is in any way questionable, CIS is not required to accept or may give less weight to that 
evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
The AAO's conclusion, from the evidence to which it has referred, is that the petitioner fails to establish the 
first criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A): that a baccalaureate or higher degree or its equivalent is the 
normal minimum requirement for entry into the particular position. 
To establish the first alternative prong at 8 C.F.R. (5 214.2(h)(4)(iii)(A)(2) the petitioner must show that a 
specific degree requirement is common to the industry in parallel positions among similar organizations. The 
AAO has already discussed the letters from and the diminished weight of 
this evidence. No other evidence in the record establishes the first alternative prong at 8 C.F.R. 
(5 2 14.2(h)(4)(iii)(A)(2). 
The petitioner has not satisfied the second alternative prong at 8 C.F.R. 4 214,2(h)(4)(iii)(A)(2) as no 
evidence in the record shows the vrovosed vosition as so comvlex or unique that it can be verformed onlv bv . 
an individual with a degree. The evidence in the record such as the letters from 
land the restaurant reviews are insufticient to establish the proposed 
as to require an individual with a baccalaureate degree in a specific specialty. Moreover, the Handbook's 
information reveals that the proposed position parallels a chef and a food service manager, which are 
occupations that do not require a bachelor's degree in a specific specialty. Consequently, the petitioner fails 
to establish the second alternative prong at 8 C.F.R. 214.2(h)(4)(iii)(A)(2). 
To establish the regulation at 8 C.F.R. (5 214.2(h)(4)(iii)(A)(3), the petitioner must show that it normally 
requires a degree or its equivalent for the position. Although counsel asserts that the petitioner has historically 
employed university-trained professionals for this and similar positions, and that CIS has previously granted 
H-1B petitions to this restaurant group for the same and similar positions, no evidence in the record 
substantiates this assertion. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. 533,534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
In a April 12, 2004 letter the petitioner also asserts that it "normally requires this degree or its equivalent as a 
minimum requirement for entry into this specialty occupation." However, no independent documentary 
evidence supports this assertion. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
To satisfy the regulation at 8 C.F.R. (5 214.2(h)(4)(iii)(A)(4), the petitioner must establish that the nature of 
the specific 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. The Handbook reveals that the proposed 
duties are a combination of those of a chef and a food service manager, and that those occupations do not 
1 WAC 04 144 53321 
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require a baccalaureate degree in a specific specialty. The submitted evidence, which the AAO has already 
discussed, does not reflect that the proposed duties require the knowledge that is associated with the 
attainment of a baccalaureate or higher degree in the culinary arts or restaurant or hospitality management. 
As such, the petitioner fails to establish this last criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall 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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.