remanded H-1B Case: Restaurant Management

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US. Department of Ilomeland Security 
20 Mass Ave.. N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
 EAC 04 0 18 5245 1 
 Office: VERMONT SERVICE CENTER 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section I Ol(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(l S)(H)(i)(b) 
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 
EAC 04 01 8 52451 
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 The director's decision will be withdrawn and the 
petition remanded for entry of a new decision. 
The petitioner is a food and beverage company that seeks to employ the beneficiary as a restaurant 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. 
§ 1 10 1 5)(H>(i>(b>. 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 
 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. 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 
EAC 04 018 52451 
Page 3 
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 restaurant 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 and supervising food service activities in the 
restaurant; overseeing cooking and preparing food products; ordering and purchasing supplies; directing stock 
control; supervising sales; hiring and terminating employees; training personnel; reviewing financial 
transactions and maintaining budgets; overseeing food quality and service; maintaining standards; developing 
personnel and achieving profitability. The petitioner seeks to employ the beneficiary who holds a bachelor's 
degree in hotel and administrative management from Ecole Hoteliere de Lausanne, Switzerland. 
The director stated that the Department of Labor's Occupational Outlook Handbook (the Handbook) indicates 
that there are alternative ways to become a restaurant manager in the food service industry. They may be 
appointed based on their education or a combination of education and work experience or on progressive 
work experience, the director stated. The director found that although some of the petitioner's staff hold a 
baccalaureate degree, the degrees held are not in a specific field that is directly related to the restaurant 
industry. Moreover, the director stated that the duties of those employees do not require a baccalaureate 
degree in a specific academic field. 
On appeal, counsel states that CIS regulations do not require the beneficiary to supervise staff holding a 
baccalaureate degree that is related to the proposed position. Counsel states that the Handbook reflects that 
the offered position requires a baccalaureate degree, and he states that the regulations do not require that the 
petitioner establish that the position "exclusively requires a minimum of a baccalaureate degree in a related 
area." Counsel contends that the letter, submitted on appeal, from Hospitality Executive Search, Inc. attests 
that the petitioner normally requires a baccalaureate degree for the offered position. Counsel also submits an 
affidavit from the assistant food service manager and another manager to show that the petitioner normally 
requires a baccalaureate degree in a specific specialty for its positions. 
Upon review of the record, the petitioner has established one of the four criteria outlined in 
8 C.F.R. 3 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
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 in a specific specialty. The petitioner has 
175 employees. It operates a 145-seat, white table cloth restaurant and 190-seat bar lounge which serves 
lunch, dinner, late dinner, Sunday brunch, and private functions. It also has rooms to host a private function 
for up to 500 guests. Based on the nature of the petitioner's business operations and other evidence in the 
record, the AAO finds that the position that is offered here would require a baccalaureate degree in restaurant 
and food service management, restaurant and hospitality management, or a related field. Accordingly, the 
petitioner establishes the criterion at 8 C.F.R. tj 21 4.2(h)(4)(iii)(A)(4). 
EAC 04 01 8 52451 
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The petition will not be approved at this time as the evidence of record is insufficient to demonstrate that the 
beneficiary is qualified to perform the duties of the offered position, a restaurant manager. The record 
contains the beneficiary's diploma; however, the petitioner did not submit evidence indicating that the 
diploma is the equivalent of a U.S. bachelor's degree in a field that is related to the offered position from an 
accredited institution in the United States. The petition will therefore be remanded in order for the director to 
address the issue of the beneficiary's qualifications. The director may afford the petitioner reasonable time to 
provide evidence pertinent to the issue of whether the beneficiary is qualified to perform the duties of the 
offered position, and any other evidence the director may deem necessary. The director shall render a new 
decision based on the evidence of record as it relates to the regulatory requirements for eligibility. The 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. $1361. 
ORDER: 
 The director's December 11, 2003 decision is withdrawn. The petition is remanded to the 
director for entry of a new decision, which if adverse to the petitioner, is to be certified to the 
AAO for review.