dismissed H-1B Case: Restaurant Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of pawasl privacy 
PUBLIC COPY 
U.S. Citizenship 
and Immigration 
Services 
FILE: . SRC 04 25 1 5045 1 Office: TEXAS SERVICE CENTER Date: AUG 1 8 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 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, Chief 
Administrative Appeals Office 
SRC 04 25 1 5045 1 
Page 2 
DISCUSSION: The service center 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 restaurant that seeks to employ the beneficiary as a "general operations manager 11." The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
8 10 l(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 10 ](a)(] 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence, including a letter from the petitioner and the petitioner's 
projected financial performance documents. 
Section 214(i)(l) of the Act, 8 U.S.C. 8 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. 8 214.2(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. $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 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 "general operations manager 11." Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's undated letter in support of the petition; and 
SRC 04 25 1 5045 I 
Page 3 
the petitioner's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail: maintaining a high level of client/customer satisfaction and quality 
standards; providing strong leadership and mentoring for the staff; developing financial objectives; 
monitoring procurement; performing inventory control; devising and implementing general accounting 
systems; building sales and controlling expenses; developing and implementing marketing programs; 
selecting, training, and coaching new district managers; participating in the development of long-term 
planning and budgeting; implementing and supervising computerized systems; supervising the development 
of strategic planning; and developing, promoting, and sustaining the corporate culture. The petitioner 
indicated that a qualified candidate for the job would possess a bachelor's degree in hotel and restaurant 
management. 
The director found that the proffered position was not a specialty occupation because the proposed duties do 
not appear to require the theoretical and practical application of a body of highly specialized knowledge. 
Citing to the Department of Labor's 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 
specialty. The director found further that the petitioner failed to establish any of the criteria found at 
8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proposed duties, which entail developing and implementing 
marketing programs at store level and system wide, are so complex as to require a bachelor's degree. Counsel 
states further that the proffered position is executive in nature and, as the petitioner continues to grow, the 
beneficiary will manage and lead many subordinate employees. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 3 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to 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 firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Znc. v. Reno, 36 F. Supp. 2d 1 15 1, 1165 (D. 
Minn. 1999)(quoting HirdBlaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
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. No evidence in the Handbook, 2006-2007 edition, indicates that a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required for a food service manager job. Counsel's assertion that the 
proffered position is executive in nature and, as the petitioner continues to grow, the beneficiary will manage 
and lead many subordinate employees, is noted. 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). Also noted is the petitioner's projected financial performance. A visa petition may not be approved at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin 
SRC 04 25 1 5045 I 
Page 4 
Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). CIS regulations affirmatively require a petitioner to 
establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(12). 
Further, although information on the petition reflects that the petitioner has more than fifty employees and a 
gross annual income of $2.5 million, the record contains no evidence in support of these claims such as 
federal income tax returns and quarterly wage reports. 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 SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
In a letter dated October 21, 2004, counsel indicates that CIS has already determined that the proffered 
position is a specialty occupation since CIS has approved another, similar petition in the past. This record of 
proceeding does not, however, contain all of the supporting evidence submitted to the service center in the 
prior case. In the absence of all of the corroborating evidence contained in that record of proceeding, the 
documents submitted by counsel are not sufficient to enable the AAO to determine whether the position 
offered in the prior case was similar to the position in the instant petition. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In 
making a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the 
prior case was similar to the proffered position or was approved in error, no such determination may be made 
without review of the original record in its entirety. If the prior petition was approved based on evidence that 
was substantially similar to the evidence contained in this record of proceeding, however, the approval of the 
prior petition would have been erroneous. CIS is not required to approve petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Neither CIS nor any other agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825 F.2d 1084, 1090 
(6th Cir. 1987), cert denied, 485 U.S. 1008 (1988). 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
various restaurant positions. There is no evidence, however, to show that the employers issuing those postings 
are similar to the petitioner, or that the advertised positions are parallel to the instant position. The 
advertisements include restaurant positions at the regional level and for large institutions. Further, the 
advertisements do not stipulate a bachelor's degree in a specific specialty. Thus, the advertisements have no 
relevance. 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard, or documentation to support the complexity or uniqueness of the proffered position. The 
petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. Neither counsel nor the petitioner addresses this issue on appeal. The 
record, however, contains an H-1B approval notice for an employee of the petitioner. As discussed above, the 
record of proceeding does not contain all of the supporting evidence submitted to the service center in the 
prior case. Thus, the AAO is unable to determine whether the position offered in the prior case was similar to 
the position in the instant petition. Further, CIS must examine the ultimate employment of the alien, and 
determine whether the position qualifies as a specialty occupation, regardless of the petitioner's past hiring 
SRC 04 25 1 5045 1 
Page 5 
practices. C' Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). The critical element is not the title of the 
position or 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 ~ct.' 
In this regard, the petitioner fails to establish that the "general operations manager 11" position it is offering to 
the beneficiary requires the application of such a body of knowledge and the attainment of such a degree. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(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. 
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. 5 2 14.2(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. 8 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied. 
' The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387.