dismissed H-1B Case: Restaurant Management

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 04 257 53867 Office: CALIFORNIA SERVICE CENTER Date: m! 0 1 2006 
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. 9 1 101 (a)(l 5)(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 
WAC 04 257 53867 
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 hchise holder of Denny's restaurants and seeks to employ the beneficiary as a restaurant 
manager. The petitioner endeavors to classify the beneficiary as a nonimmigrant 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 10 l(a>(l5)(H)(i)(b). 
The director denied the petition because the proffered position does not qualify as a specialty occupation. On 
appeal, counsel submits a brief stating that the offered position qualifies as a specialty occupation. 
The issue to be discussed in this proceeding is whether the proffered position qualifies as a specialty 
occupation. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 3 1 101 (a)(l S)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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. 
The term "specialty occupation" is &her defined at 8 C.F.R. 5 214.2(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. 3 214.2(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; 
WAC 04 257 53867 
Page 3 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are 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) the 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) the Form I-290B with counsel's brief. The AAO reviewed the record in its 
entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a restaurant manager. Evidence of the beneficiary's 
duties includes the Form 1-129 petition with attachment and the petitioner's response to the director's request 
for evidence. According to this evidence the beneficiary would: 
Estimate food consumption, place orders with suppliers, and schedule delivery of food and beverages; 
Purchase stocks of restaurant supplies, e.g. tableware, napkins, cleaning supplies, etc; 
Arrange for equipment maintenance and repair and coordinate services such as waste removal and 
pest control; 
Supervise the quality of food standards (evaluating the quality of purchases), service standards, and 
sanitation and food safety standards; 
Oversee food preparation, examining quality and portion sizes; 
Direct budget preparation and adherence to cost and profit guidelines; 
Supervise record keeping, payroll, and government licensing and reporting requirements; 
Maximize sales by emphasizing the most popular and profitable menu items; 
Direct restaurant personnel activities, including recruiting, hiring and firing, and promotions; 
Prepare a financial and business plan for the restaurant; 
Maintain good public relations, including dealing with customer complaints; 
WAC 04 257 53867 
Page 4 
Handle the restaurant's money, i.e. keep records of receipts, arrange for bank deposits, and pay 
restaurant bills; and 
Prepare and answer restaurant business correspondence. 
The petitioner does not state that it requires a degree in any specific specialty for entry into the offered 
position, but finds the beneficiary qualified for the position by virtue of his foreign degree in hotel 
management from Mangalore University in India. 
Upon review of the record, the petitioner has failed to establish that the proffered position qualifies as a 
specialty occupation. The AAO routinely consults the Department of Labor's Occupational Outlook 
Handbook (Handbook) for information about the duties and educational requirements of particular 
occupations. The duties of the proffered position are essentially those noted for food service managers. The 
Handbook notes that a bachelor's degree in restaurant and food service management provides strong 
preparation for a career in this occupation. Candidates are recruited, however, from two and four-year college 
hospitality management programs, as well as from technical institutes and other institutions offering programs 
leading to associate degrees or other formal certification. Thus, the petitioner has not established the first 
criterion of 8 C.F.R. $ 214.2(h)(4)(iii)(A), that a baccalaureate or higher degree, or its equivalent, is normally 
the minimum requirement for entry into the position. 
The petitioner asserts that a degree in a specific specialty is common to the industry in parallel positions 
among similar organizations and in support of that assertion refers to the educational requirements for the 
position noted in the Handbook. The Handbook does not establish the petitioner's assertion. The Handbook 
notes that 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. While a bachelor's degree in restaurant and food service 
management provides strong preparation for a career in this occupation, it is not the minimum requirement for 
entry into the profession. Graduates of community and junior colleges, technical institutes, and other 
institutions who offer associate degrees or other formal certification are regularly employed in the industry in 
positions as restaurant mangers. The petitioner has not established the referenced criterion at 8 C.F.R. 
$ 214.2(h)(4)(iii)(A)(2). 
The petitioner states that it normally requires a degree for the offered position, but offers no evidence in this 
regard. Simply going on the 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 California, 14 I&N 1 90 (Reg. Comm. 1 972)). Further, CIS must examine 
the ultimate employment of the alien, and determine whether the position qualifies as a specialty occupation. 
CJ: Defensor v. Meissner, 201 F. 3d 384 (5'h 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 
WAC 04 257 53867 
Page 5 
in the specific specialty as the minimum for entry into the occupation as required by the ~ct.' To interpret the 
regulations any other way would lead to absurd results: if CIS were limited to reviewing a petitioner's 
self-imposed employment requirements, then any alien with a bachelor's degree could be brought into the 
United States to perform menial, non-professional, or an otherwise non-specialty occupation, so long as the 
employer required all such employees to have baccalaureate or higher degrees. See id at 388. 
Finally, the nature of the specific duties is not so specialized or complex that knowledge required to perform 
them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, nor 
are the duties so complex or unique that they can be performed only by individuals with a degree in a specific 
specialty. The duties to be performed are routine in the industry for food service managers, and are regularly 
performed by individuals with less than a baccalaureate level education. The petitioner has failed to establish 
either of the referenced criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) or (4). 
The petitioner has failed to establish that the offered position meets any of the criteria listed at 8 C.F.R. 
214.2(h)(4)(iii)(A). 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 and the appeal shall accordingly be dismissed. 
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.