dismissed H-1B Case: Travel Services

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PUBLICCOpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm, 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
OCT 3 1 2001
FILE: SRC 06 049 52584 Office: TEXAS SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § I IoI(a)(15)(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
www.uscis.gov
SRC 06 049 52584
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 travel agency that wishes to employ the beneficiary as a manager/flight reservations. The
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I 10I(a)(l5)(H)(i)(b).
The director denied the petition because the proffered position does not qualify as a specialty occupation. On
appeal, the petitioner submits a brief asserting that the offered position qualifies as a specialty occupation.
The issue to be discussed in this proceeding is whether the proffered position qualifies a§ a specialty
occupation.
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § IIOI(a)(l5)(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)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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.P.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;
SRC 06 049 52584
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(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 1-290B with supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The petitioner is seeking the beneficiary's services as a manager/flight operations. 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 the evidence the beneficiary would:
• Apply principles of logic and scientific logic analysis to define problems, collect data, establish facts,
and draw valid conclusions;
• Interpret an extensive variety of technical instructions via directing and coordinating reservation
activities for certificate and commercial travel;
• Review statistical data on miles flown and conduct comparison studies on airline reservations to
develop methods and procedures designed to increase operation efficiency and increase reservations
for company flights;
• Interpret policies and procedures regarding customer relations;
• Analyze economic statistics as applied to air transportation such as weather conditions, special flight
rates and future volume;
• Perform budgetary and supervisory functions, such as preparing estimates of work force required to
process workload and equipment requirements in order to formulate budget estimates;
• Review performance evaluations on reservations personnel and initiate personnel action as required;
• Schedule rotation of worker assignments to improve capabilities of personnel and develop worker
overall knowledge of department activities;
• Direct investigation of customer complaints regarding reservation services and prepare
correspondence designed to improve customer relations; and
SRC 06049 52584
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• Resolve personnel grievances and submit unresolved grievances to higher authority.
The petitioner requires a minimum of a bachelor's degree for entry into the proffered position, but does not
state that the degree need be in any particular discipline.
The AAO routinely consults the Department of Labors Occupational Outlo~k Handbook (Handbook) for
information about the duties and educational requirements of particular occupations. The petitioner states that
the duties of the proffered position are those of a "Manager, Flight - Reservations (air trans.)" as detailed in
the Dictionary of Occupational Titles (DOT). The AAO does not agree. In describing the duties of the
proffered position, the petitioner has merely restated and paraphrased the duties detailed for a "Manager,
Flight - Reservations" in the DOT. Its description of the beneficiary's duties lacks the specificity and detail
necessary to support the petitioner's contention. A petitioner cannot establish its employment as a specialty
occupation by describing the duties of that employment in the same general terms as those used in the DOT in
discussing an occupation title, e.g.:
• Review statistical data on miles flown and conduct comparison studies on airline reservations to
develop methods and procedures designed to increase operation efficiency and increase reservations
for company flights;
• Interpret policies and procedures regarding customer relations;
• Analyze economic statistics as applied to air transportation such as weather conditions, special flight
rates and future volume;
• Perform budgetary and supervisory functions, such as preparing estimates of work force required to
process workload and equipment requirements in order.to formulate budget estimates;
• Review performance evaluations on reservations personnel and initiate personnel action as required;
• Schedule rotation of worker assignments to improve capabilities of personnel and develop worker
overall knowledge of department activities;
• Direct investigation of customer complaints regarding reservation services and prepare
correspondence designed to improve customer relations; and
• Resolve personnel grievances and submit unresolved grievances to higher authority.
This type of generalized description is necessary when defining the range of duties that may be performed
within an occupation, but cannot be relied upon by a petitioner when discussing the duties attached to specific
employment. In establishing a position as a specialty occupation, a petitioner must describe the specific
duties and responsibilities to be performed by a beneficiary in relation to its particular business interests. The
duties referred to by the petitioner in the DOT, involve the direction and coordination of reservation activities
normally performed through subordinate supervisory personnel, for certificated or commercial transportation
SRC 06 049 52584
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companies. These are not the duties to be performed by the beneficiary who would perform his services for a
travel agency.
In the instant case, the petitioner has offered no description of the duties of the proffered position beyond the
generalized terms describing the position in the DOT. It cannot, therefore, establish that the position meets
any of the requirements for a specialty occupation set forth in 8 C.F.R. § 214.2(h)(4)(iii)(A). As previously
noted, CIS must examine the actual employment of the alien, i.e., the specific tasks to be performed by that
alien, to determine whether a position qualifies as a specialty occupation. The petitioner's description of the
duties, however, is so generic that it is not possible to identify those tasks and, therefore, whether the
performance of those duties requires the theoretical and practical application of a body of highly specialized
knowledge. For example, the record does not reflect what type of statistical data on miles flown would be
reviewed, how that data would be obtained, the specific purpose for which the data would be obtained, or how
that data would be used in the petitioning travel agency. The record does not establish what type of
comparison studies on airline reservations would be conducted, or how the data obtained from any such
studies would be used to increase operational efficiency or reservations for company flights in the petitioning
travel agency. Without a reliable description of the position's duties, the AAO is unable to determine whether
the performance of those duties meets the statutory definition of a specialty occupation - employment
requiring the theoretical and practical application of a body of highly specialized knowledge and the
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry
into the occupation. The petitioner has failed to establish the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l).
The petitioner does not state that a degree requirement is common to the industry in parallel positions among
similar organizations for entry into the proffered position, and offers no evidence in this regard. The
petitioner has, therefore, failed to establish the first prong of the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).
Alternatively, under the second prong of this criterion, the petitioner may establish the offered position as a
specialty occupation by showing that the position is so complex or unique that it can be performed only by an
individual with a degree in a specific specialty. As stated above, the duties of this position are so generally
described in relation to the petitioner's business environment that it cannot be determined from the record that
the duties are complex or unique, as it cannot be determined with any degree of specificity precisely what
tasks the beneficiary would perform on a daily basis for the petitioner. As such, the petitioner has failed to
establish the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The petitioner does not state that it normally requires a degree in a specific specialty for entry into the
proffered position, and offers no evidence in this regard. The petitioner has, therefore, failed to establish the
criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).
In support of its assertion that the proffered position qualifies as a specialty occupation, the petitioner stated in
its response to the director's request for evidence that it relied on the criterion at 8 C.F.R.
§ 214.2(h)( 4)(iii)(A)( 4). The fourth criterion requires a petitioner to establish that the nature of the specific
duties of the position is so specialized and complex that the knowledge required to perform them is usually
associated with the attainment of a baccalaureate or higher degree. The duties of the proffered position, as
described, are too generic to determine what specific tasks would be performed by the beneficiary in the
petitioner's business environment. The generic description of the duties discussed under the first criterion at
8 C.F.R. § 214.2(h)(4)(iii)(A) also makes it impossible to evaluate these duties under the specialized and
SRC 06 049 52584
Page 6
complex threshold of the fourth criterion. Accordingly, the AAO concludes that the proffered position is not
a specialty occupation under the requirements of8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The proffered position does not meet any ofthe requirements of 8 C.F.R. § 214.2(h)(4)(iii)(A). Accordingly,
the director's denial ofthe 1-129 petition shall not be disturbed.
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 failed to sustain that burden and the appeal shall accordingly be dismissed.
ORDER: The appeal is dismissed. The petition is denied.