dismissed H-1B Case: Retail Management

identifying data deleted to 
prevent clearly unwmted 
invasion of personal pfiv~y 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY 
FILE: 
IN RE: 
EAC 03 226 545 12 Office: VERMONT SERVICE CENTER Date: AUG 0 1 2:~s 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(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 
EAC 03 226 54512 
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 water massage kiosk business that seeks to employ the beneficiary as a manager of 
operations. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to 3 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1 lOl(a)(l5)(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 the petitioner's tax documentation and bank 
statements. 
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. 
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: 
(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) interprets the term "degree" in the criteria at 
8 C.F.R. 5 214.2(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. 
EAC 03 226 545 12 
Page 3 
The petitioner is seeking the beneficiary's services as a manager of operations. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's July 31, 2003 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: advising clients on the benefits of Aqua Massage for sports injuries, body aches, 
and stress; supervising, training, and scheduling personnel; ordering supplies; and providing minor 
maintenance at the petitioner's three locations. The petitioner indicated that a qualified candidate for the job 
would possess a bachelor's degree in physical therapy, physical education, or a related field. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so complex as to require a bachelor's degree in physical education. Citing to 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 specialty. The director 
found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position requires both theoretical and practical knowledge 
of the principles of physical fitness, muscle structure, anatomy, and physiology. Counsel states further that the 
beneficiary must teach that knowledge to the petitioner's employees. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 5 214.2(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. 9 214.2(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, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. 
Minn. 1999)(quoting Hird/Blaker COT. v. Suva, 7 12 F. Supp. 1095,1102 (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. The record's descriptions of the proffered position and the duties comprising it are limited to 
generalized functions that counsel and the petitioner have ascribed to the position, such as applying 
"theoretical and practical knowledge of the principles of physical fitness, muscle structure, anatomy, and 
physiology." In this case, the petitioner operates water massage kiosks in three mall locations. According to 
counsel's August 20, 2003 letter, the beneficiary would supervise 11 sales associates, whose educational 
requirement comprises a high school education or GED. The petitioner has not demonstrated that the 
proffered position requires theoretical knowledge of physical fitness, physiology, muscle structure, and 
anatomy. Nor has the petitioner explained or provided documentary evidence to establish how the 
beneficiary's actual substantive work would require at least a bachelor's degree level of knowledge in a 
specific specialty. A review of the Advertising, Marketing, Promotions, Public Relations, and Sales Managers 
occupational category in the Handbook, 2006-2007 edition, finds that the proffered position is primarily that of a 
EAC 03 226 545 12 
Page 4 
sales manager. No evidence in the Handbook indicates that a baccalaureate or higher degree in a specific 
specialty, or its equivalent, is normally required for a sales manager job. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
various positions including retail managers and store managers. The majority of the advertisements, however, 
do not require a bachelor's degree in a specific specialty. Thus, the advertisements are not probative. 
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; and 
the duties that comprise the proffered position are described in generalized terms that do not establish the 
position as sufficiently unique or sufficiently complex to require a bachelor's degree level of knowledge in a 
specific specialty. 
The petitioner, therefore, has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As counsel does not address this issue on appeal, it will not be discussed 
further. The evidence of record 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 hgher 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. As described, the proposed duties appear no more specialized and complex than those 
general duties which the Handbook attributes to the general occupational category of sales managers, for which 
the Handbook does not indicate a normal requirement for usual association with at least a bachelor's degree in 
a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214.2(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. tj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.