dismissed H-1B Case: Restaurant Management

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacx
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: EAC 06 187 53450
PUBLICCOpy
Office: VERMONT SERVICE CENTER
OCT 31 Z007
Date:
INRE:
PETITION:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.c. § 110l(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.
ft~~-Il ~i.---
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 187 53450
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 management company that seeks to employ the beneficiary as an operations
manager. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation
pursuant to section 101(aXI5)(H)(iXb) of the Immigration and Nationality Act (the Act), 8 U.S .C.
§ 1101(a)(15)(H)(iXb)·
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 speci alty
occupation.
Section 101(a)(15)(H)(i)(b) of the Act , 8 U .S.C. § 110l(a)(l5)(H)(i)(b) , provides , in part , for th e
classification of qualifi ed nonimmigrant aliens w ho are coming temporaril y to the United States to perform
services in a specialty o ccupation.
Section 214(i)(1) of the Act , 8 U.S.C. § I 184(i )(I), 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:
[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:
(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;
EAC 06 187 53450
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.
§ 2l4.2(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 an operations manager. Evidence of the beneficiary's
duties includes the Form 1-129 petition with attachment, the petitioner's response to the director's request for
evidence, and additional information submitted on appeal. According to this evidence the beneficiary would:
• Analyze sales as compared to previous years;
• Prepare and exceed sales targets;
• Teach and enforce company cleanliness standards;
• Teach and enforce company salesmanship programs;
• Ensure that the 110% guarantee program is in use;
• Inspect all equipment and ensure maintenance;
• Determine staffing levels and maintain appropriate staffing;
• Ensure all associates receive formal performance appraisals;
• Conduct manager performance reviews;
• Develop managerial talent in the restaurant;
• Determine unit goals;
• Insure that associate training programs are in place;
EAC 06 187 53450
Page 4
• Approve all associate hires;
• Enforce company policies;
• Terminate employees;
• Determine and approve scheduling pro formas;
• Ensure that the cost of goods exceeds company standards;
• Ensure that total labor cost exceeds company standards;
• Ensure that operating expenses exceed company standards;
• Ensure that Silver Diner brand atmosphere standards are delivered;
• Ensure that Silver Diner brand food standards are delivered; and
• Ensure that Silver Diner brand service standards are delivered.
The petitioner requires a minimum of a bachelor's degree in business management, hospitality management,
or a related field for entry into the proffered position.
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 proffer.edposition 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)(4Xiii)(A), that a baccalaureate or higher degree, or its equivalent, is normally
the minimum requirement for entry into the position.
The petitioner does not assert that a degree in a specific specialty is common to the industry in parallel
positions among similar organizations, or that it normally requires a degree or its equivalent in a specific
specialty for entry into the position, and offers no evidence in this regard. The petitioner has failed to
establish the referenced criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) or (3).
The petitioner asserts that the duties of the proffered position are so specialized and complex that knowledge
required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a
specific specialty, and that the duties are so complex or unique that they can be performed only by individuals
with a degree in a specific specialty. In support of these assertions the petitioner submits, on appeal,· an
opinion letter from , The Hospitality College, Johnson and Wales University. _
EAC 06 187 53450
Page 5
_ states that, in his opinion, performance of the duties of the proffered position requires the attainment of
at least a U.S. bachelor's degree in food service management, business management, or an equivalent degree.
_Ibases his opinion on his education and experience, stating that the duties of the offered position
are specialized and require professional theoretical knowledge in business and food service management. He
further states that the position requires the theoretical and practical application of a body of highly specialized
knowledge._discusses the duties of the position and opines that performance of the duties would
normally require education at a baccalaureate level. He provides no evidence to support his opinion,
however, such as labor market surveys or studies for similar positions establishing that a baccalaureate level
education is the norm for the industry. Simply going on the record without supporting documentary evidence
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N 190 (Reg. Comm.
1972)). The opinion submitted is of little evidentiary value and shall be afforded little weight. CIS 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 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). According to
the Handbook, a bachelor's degree in a specific specialty is not normally required for the position. 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 record contains no evidence to establish that
the duties to be performed by the beneficiary in the petitioner's business environment are more specialized,
complex, or unique than those performed by restaurant managers for other entities that do not require a
baccalaureate level education. Again, the petitioner must submit evidence of the uniqueness or complexity of
the duties to be performed. The petitioner has failed to establish the referenced criteria at 8 C.F .R.
§ 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.