dismissed H-1B Case: Restaurant Management

identifying data deletedto
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invasionofpeaonalprivacy
pUBLICCOpy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and ImmigratIon
Services
FILE: EAC 05 212 50791 Office: VERMONT SERVICE CENTER Date: err 04 2007
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) ofthe
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
~~~/.1t/L. (ob~ P. Wie C . f
Administrative Appe Office
www.uscis.gov
EAC 05 212 50791
Page 2
DISCUSSION: The director of the service center 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 owns and operates a full-service Thai restaurant.1 It seeks to employ the beneficiary as its
general manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a
specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.c. § 1101(a)(lS)(H)(i)(b): The director denied the petition because the proffered position is not a
specialty occupation.
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) counsel's response to the director's request; (4) the director's denial
letter; and (5) the Form I-290B, with counsel's brief. The AAO reviewed the record in its entirety before
reaching its decision.
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its
burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary meets
the following statutory and regulatory requirements.
Section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
An 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:
1 An Internet search on August 28,2007 of the Virginia State Corporation Commission of the Commonwealth
of Virginia website at http://s0302.vita.virginia.gov/servletiresqportal finds that the petitioner's status has
been terminated.
EAC OS 212 S0791
Page 3
(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) consistently interprets the term "degree" in the above criteria to
mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the
proffered position.
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a
position's title. The specific duties of the proffered position, combined with the nature of the petitioning
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201 F.
3d 384 (Sth Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards, but whether the position actually requires the theoretical and practical application of a body of
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty
as the minimum for entry into the occupation, as required by the Act.
The petitioner seeks the beneficiary's services as its general manager. Evidence of the beneficiary's duties
includes: the petitioner's July 14, 200Sletter in support of the petition and counsel's January 3, 2006 response
to the director's request for evidence. As stated by the petitioner, the proposed duties are as follows:
Direct and coordinate activities concerned with pricing and sales of products. Manage staff, prepare
work schedules, and assign specific duties. Review financial statements, sales and activity reports,
and performance data to measure productivity and goal achievement and to determine areas needing
cost reduction and program improvement. Determine staffmg requirements, and interview, hire, and
train new employees.
The director found that the proposed general manager duties do not require a bachelor's degree. Citing the
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), the director noted that the
minimum requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific
EAC 0521250791
Page 4
specialty. The director concluded that the petitioner failed to establish any of the criteria found at 8 C.F.R.
§ 214.2(h)(4)(iii)(A).
On appeal, counsel states, in part, that the petitioner is an upscale dining establishment and thus the proffered
general manager position requires a bachelor's degree in management or a related field. Counsel cites the
DOL's O*Net to state that most employers require a bachelor's degree for the proffered position. Counsel
also states that the record contains an expert opinion and job postings as supporting documentation.
Preliminarily, the AAO disagrees, with counsel's interpretation of the O*Net and its applicability to a
determination that a position is a specialty occupation. The AAO does not consider the O*Net to be a
persuasive source of information as to whether a job requires the attainment of a baccalaureate or higher
degree (or its equivalent) in a specific specialty. O*Net provides only general information regarding the tasks
and work activities associated with a particular occupation, as well as the education, training, and experience
required to perform the duties ofthat occupation. The O*Net ratings are meant to indicate the total number of
years of vocational preparation required for a particular occupation and does not describe how those years are
to be divided among training, formal education, and experience and it does not specify the particular type of
degree, if any, that a position would require.
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.
The AAO routinely consults the Handbook for its information about the duties and educational requirements of
particular occupations. The AAO does not concur with counsel that the proffered position is a specialty
occupation.The Handbook, 2006-07 edition, reports that the educational requirements for a position as a food
service manager varies. The Handbook indicates:
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 experience, interest, and
aptitude. Many restaurant and food service manager positions - particularly self-service and
fast-food - are filled by promoting experienced food and beverage preparation and services
workers.
The Handbook also recognizes: "[a] bachelor's degree in restaurant and food service management provides
particularly strong preparation for a career in this occupation," and "[flor 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.It
The AAO observes that the Handbook does not specifically discuss management positions at independently
owned high-end restaurants but does provide a general understanding of the educational requirements for an
EAC 05 212 50791
PageS
individual to perform the duties of a restaurant manager. The Handbook does not include discussion
indicating that a bachelor's degree or its equivalent in a specific discipline is a requirement to perform the
duties of this occupation. The variety of paths available to enter into a restaurant manager position precludes
the conclusion that a baccalaureate or higher degree or its equivalent is normally the minimum requirement
for entry into the proffered position. Accordingly, the petitioner has not established that a baccalaureate or
higher degree or its equivalent in a specific specialty is the normal minimum requirement for entry into the
position of a restaurant manager. The petitioner has failed to establish the criterion at 8 C.F.R.
§ 214.2(h)(4)(iii)(A)(J).
The record contains an opinion letter, dated October 31,2005, from a university professor, who opines that at
least a bachelor's degree or its equivalent in hospitality management, business management, or a related field
from an accredited institution of higher education in the United States is considered a standard requirement in
the industry for general manager positions. The author, however, does not indicate that he interviewed the
beneficiary or the petitioner. Nor does he relate any personal observations of the petitioner's operations or of
the work that the beneficiary would perform. Moreover, the author does not explain why his opinion, which
appears contrary to the Handbook's report on this occupation, should be given greater weight than that of the
Handbook. The Handbook, which offers an overview of national hiring practices, draws on personal
interviews with individuals employed in the occupation or from websites, published training materials and
interviews with the organizations granting degrees, certification, or licenses in the field, to reach its
conclusions regarding the nation's employment practices. The opinion of the October 31, 2005 author is
insufficient to overcome the Handbook's finding that a bachelor's degree or its equivalent in a specific
discipline is not a requirement to perform the duties of this occupation. 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 ofCaron International, 19 I&N Dec. 791 (Comm. 1988).
Regarding parallel positions in the petitioner's industry, counsel submits 9 Intemetjob postings for restaurant
managers. Only one of the postings, however, requires a bachelor's degree in a specific specialty. The
majority of the postings specify a preference for a bachelor's degree without stipulating any specific specialty.
Moreover, the postings do not indicate that the businesses publishing the advertisements are similar to the
petitioner in size, number of employees, or level of revenue. Thus, the postings do not establish that a degree
requirement is common to the industry in parallel positions among similar organizations.
The record also does not include any evidence from professional associations regarding an industry standard,
or documentation to support the complexity or uniqueness of the proffered position. The AAO acknowledges
counsel's assertion that the petitioner is not just a restaurant, but rather is an upscale dining establishment and
thus requires a related bachelor's degree for its general manager position, and the professor's assertion that
the complexity of the proffered position is multifaceted and thus requires a related bachelor's degree. The
AAO, however, finds that the proposed duties of a general manager performing the business operations of a
Thai restaurant are not unique from or more complex than duties common to the management duties of many
restaurants. The petitioner has failed to distinguish the proffered position from that of a position that is
, .
EAC 05 212 50791
Page 6
routinely performed by non-degreed restaurant managers. Accordingly, the petitioner has failed to establish
either prong ofthe criterion at 8 C.F.R. § 2l4.2(h)(4Xiii)(A)(2).
The AAO now turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position. In his January 3, 2006 response to the RFE, counsel states that the
proffered position is a new position. The evidence ofrecord thus does not establish this criterion.
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(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.
Counsel states, on appeal, that the beneficiary's responsibilities - which entail directing and coordinating pricing
and sales activities, managing staff and preparing work schedules, reviewing financial statements and sales and
activity reports to' detennine areas needing cost reduction improvement, and establishing and implementing
policies, goals, objectives, and procedures - are so complex as to require a related bachelor's degree. The
information in the record about the proposed duties, however, does not establish that they exceed in scope,
specialization, or complexity those usually performed by food service managers, an occupational category for
which the Handbook indicates no requirement for or usual association with a baccalaureate or higher degree in a
specific specialty. Regarding the proposed duties that relate specifically to knowledge of the Thai language,
the petitioner has not demonstrated that these activities elevate the complexity of the proffered position to require
a bachelor's degree in a specific specialty. It is fwther noted that, although information on the petitioner reflects
that the petitioner has 6 employees and a gross annual income of $500,000, the record does not contain any
corroborating evide.ncein support of these claims, such as quarterly wage reports and federal income tax returns.
Simply going on record without supporting documentary evidence is not sufficient for the purpose of meeting
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Corom. 1998) (citing
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Corom. 1972».
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent,
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty
occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
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. § 1361.
The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.