dismissed H-1B Case: Retail Management

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U.S. Department of lIomeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington. DC 20529 
FILE: SRC 04 155 50938 Office: TEXAS SERVICE CENTER Date: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and ~ationalit~ Act, 8 U.S.C. $ 1 1 Ol(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
JUL 1 4 2006 
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 04 155 50938 
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 is a gas station/convenience store that seeks to employ the beneficiary as a general manager. 
The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to section 10 l(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. Counsel submits 
a timely appeal. 
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. 5 214.2(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. 3 214.2(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: (I) 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 
SRC 04 155 50938 
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director's denial letter; and (5) the 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 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 the daily operations of the petitioner's business, including ordering 
food and gas supplies; scheduling and assigning work duties; training and overseeing employees; monitoring 
and managing stock inventory; and performing banking, accounting, payroll, and tax duties. The petitioner's 
response to the request for evidence elaborated on the proposed duties. The petitioner's March 26, 2004 letter 
indicates that it requires a baccalaureate degree in business administration for the proposed position. In the 
December 13, 2004 letter, counsel states that the petitioner requires a bachelor's degree in business 
administration/accounting and two years of business management experience. 
The director found the submitted job postings unpersuasive in establishing the offered position as a specialty 
occupation. The director concluded that the petitioner satisfied none of the four criteria outlined in 
8 C.F.R. 5 2 14.2(h)(4)(iii)(A). 
On appeal, counsel submits additional and previously submitted evidence to establish that the offered position 
is a specialty occupation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 8 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $8 214.2(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 2006-2007 edition of the Department of 
Labor's Occupational Outlook Handbook (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, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999)(quoting HirdiBlaker 
Corp. v. Suva, 71 2 F. Supp. 1095, I 102 (S.D.N.Y. 1989)). 
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. 
SRC 04 155 50938 
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Counsel asserts that the offered position is similar to a general and operations manager as that occupation is 
depicted in the Handbook. In the context of the petitioner's business enterprise, which is a gas 
station/convenience store, the AAO finds that the proposed duties reflect those of a sales worker supervisor as 
that occupation is delineated in the Handbook, which states: 
Sales worker supervisors oversee the work of sales and related workers, such as retail 
salespersons; cashiers; customer service representatives; stock clerks and order fillers; sales 
engineers; and sales representatives, wholesale and manufacturing. Sales worker supervisors 
are responsible for interviewing, hiring, and training employees, as well as for preparing 
work schedules and assigning workers to specific duties. Many of these workers hold job 
titles such as sales manager or department manager. Under the occupational classification 
system used in the Handbook, however, workers with the title manager who mainly supervise 
nonsupervisory workers are called supervisors rather than managers, even though many of 
these workers often perform numerous managerial functions. . . . 
In retail establishments, sales worker supervisors ensure that customers receive satisfactory 
service and quality goods. They also answer customers' inquiries, deal with complaints, and 
sometimes handle purchasing, budgeting, and accounting. Their responsibilities vary with the 
size and type of establishment. As the size of retail stores and the types of goods and services 
increase, supervisors tend to specialize in one department or one aspect of merchandising. . . . 
Sales worker supervisors in large retail establishments, often referred to as department 
managers, provide day-to-day oversight of individual departments, such as shoes, cosmetics, 
or housewares in large department stores; produce and meat in grocery stores; and sales in 
automotive dealerships. These workers establish and implement policies, goals, objectives, 
and procedures for their specific departments; coordinate activities with other department 
heads; and strive for smooth operations within their departments. They supervise employees 
who price and ticket goods and place them on display; clean and organize shelves, displays, 
and inventories in stockrooms; and inspect merchandise to ensure that nothing is outdated. 
Sales worker supervisors also review inventory and sales records, develop merchandising 
techniques, and coordinate sales promotions. In addition, they may greet and assist customers 
and promote sales and good public relations. 
Sales worker supervisors in nonretail establishments supervise and coordinate the activities of 
sales workers who sell industrial products, automobiles, or services such as advertising or 
Internet services. They may prepare budgets, make personnel decisions, devise sales- 
incentive programs, assign sales territories, and approve sales contracts. 
In small or independent companies and retail stores, sales worker supervisors not only 
directly supervise sales associates, but also are responsible for the operation of the entire 
company or store. Some are self-employed business or store owners. 
SRC 04 155 50938 
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The beneficiary's duties to order food and gas supplies, schedule and assign work duties, train and oversee 
employees, monitor and manage stock inventory, and perform banking, accounting, payroll, and tax duties are 
encompassed within those of a sales worker supervisor. In addition the duties described in the response to the 
request for evidence are also encompassed within the job duties of a sales worker supervisor. For example, 
the proposed duties to resolve customer complaints, monitor customer preferences to determine sales, 
determine price schedules and discount rates, and prepare budgets are similar to the sales worker supervisor's 
duties to "ensure that customers receive satisfactory service and quality goods"; "deal with complaints, and 
sometimes handle purchasing, budgeting, and accounting7'; "review inventory and sales records, develop 
merchandising techniques, and coordinate sales promotions"; and "prepare budgets, make personnel 
decisions, devise sales-incentive programs, assign sales territories, and approve sales contracts." 
The Handbook reports that employers do not require a sales worker supervisor to possess a bachelor's degree 
in a specific academic field. It states: 
Sales worker supervisors usually acquire knowledge of management principles and 
practices-an essential requirement for a supervisory or managerial position in retail trade- 
through work experience. Many supervisors begin their careers on the sales floor as 
salespersons, cashiers, or customer service representatives. In these positions, they learn 
merchandising, customer service, and the basic policies and procedures of the company. 
The educational backgrounds of sales worker supervisors vary widely. Regardless of the 
education they receive, recommended courses include accounting, marketing, management, 
and sales, as well as psychology, sociology, and communication. Supervisors also must be 
computer literate because almost all cash registers, inventory control systems, and sales 
quotes and contracts are computerized. 
Supervisors who have postsecondary education often hold associate or bachelor's degrees in 
liberal arts, social sciences, business, or management. To gain experience, many college 
students participate in internship programs that usually are developed jointly by individual 
schools and firms. 
The type and amount of training available to supervisors vary from company to company. 
Many national retail chains and companies have formal training programs for management 
trainees that include both classroom and on-site training. Training time may be as brief as 1 
week but may also last more than 1 year in organizations that require trainees to gain 
experience during all sales seasons. 
Counsel's December 13, 2004 letter referenced the specific vocational preparation (SVP) rating of 7 to 
establish the offered position as a specialty occupation. This is not persuasive as an SVP rating is meant to 
indicate only the total number of years of vocational preparation required for a particular position. It 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. 
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The AA07s conclusion, from the evidence to which it has referred above, is that the petitioner fails to satisfy 
the first criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A), which is that a baccalaureate or higher degree or its 
equivalent in a specific specialty is the normal minimum requirement for entry into the particular position. 
To establish the first alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) - that a specific degree requirement 
is common to the industry in parallel positions among similar organizations - the petitioner submits job 
postings. The postings are not persuasive in that they are from companies that differ in size and scope to the 
petitioner or the nature of the company is not disclosed in the posting. Furthermore, none of the companies in 
the postings indicate a requirement of a baccalaureate degree in a specific discipline. 
 Sprint is a 
telecommunications company and Avis is a car rental agency; thus, they differ in nature from the petitioner, a 
convenience storelgas station. Lowden & Associates, Inc.; Solutia, Inc.; and Cambridgestaff s client are not 
described in the job postings. Consequently, the AAO cannot determine the nature of these companies and 
whether they are similar to the petitioner. For these reasons the evidence fails to establish that a specific 
degree requirement is common to the industry in parallel positions among similar organizations 
The petitioner has not satisfied the second alternative prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) as no 
evidence in the record shows the proffered position is so complex or unique that it can be performed only by 
an individual with a degree. Furthermore, the submitted evidence indicates that the duties of the proposed 
position resemble those of a sales worker supervisor, which is an occupation that the Handbook reveals does 
not require a baccalaureate degree in a specific field. 
No evidence in the record establishes the regulation at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(3): that the petitioner 
normally requires a degree or its equivalent for the position. 
To satisfy the regulation at 8 C.F.R. $ 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. No evidence in the record demonstrates 
that the nature of the beneficiary's duties is so specialized and complex as to require knowledge that is 
associated with a baccalaureate in a specific academic discipline. The Handbook indicates, furthermore, that 
the proposed duties parallel those of a sales worker supervisor, and that employers do not require a 
baccalaureate degree in a specific specialty for a sales worker supervisor position. The Handbook indicates 
no usual association between the type of work that the beneficiary would perform and at least a baccalaureate 
degree in a specific specialty. Accordingly, the petitioner fails to establish the criterion at 8 C.F.R. 
3 2 I 4.2(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 on this 
ground. 
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. 
SRC 04 155 50938 
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ORDER: 
 The appeal is dismissed. The petition is denied.