H1B Visa Denials – ? – Filing a motion to re-open might be an option for you

Our office has extensive experience assisting the clients in filing H-1B petitions. We also help the clients consider their options if the case is denied. Below is an example of the H-1B case that got approved even after the denial was issued.

The employer/petitioner was a large luxury hotel. The petitioner sought the services of the beneficiary in the position of a Food Service Manager.

The Immigration Service issued a Request for Evidence (RFE) in that case prompting the employer to submit additional evidence to establish that the position offered qualifies as a specialty occupation.

The employer submitted the detailed response to the RFE and extensive supporting documents to USCIS. However, the H-1B petition was denied because, in the opinion of the Service, the petitioner has not proved that the position qualifies as a specialty occupation.

We filed the motion to reopen the case, and were successful in convincing USCIS that the petitioner’s position of Food Service Manager does qualify as a specialty occupation for the H-1B purposes. The beneficiary was granted the H-1B status.

According to the regulations, the H-1B 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.

For the first prong, USCIS usually relies on the text of the Occupational Outlook Handbook (OOH), a publication of the United States Department of Labor in determining whether the proposed position qualifies as a specialty occupation. However, the Service usually construes the OOH quite narrowly. In the denial decision of the above-referenced case, the adjudicating officer noted that the OOH does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. As a result, as the officer concluded, the proffered position cannot be considered to have met this criterion.

In our motion to reopen, we pointed out that the pertinent section of the OOH is written to reflect the educational requirements of all employers, including fast-food restaurants, chain restaurants, casual diners, small and medium sized hotels, and luxury large hotels and resorts with separate food and beverage departments. It is clear that the educational requirements differ among these employers. While most restaurants and small hotels might recruit qualified individuals without regard to their degrees, upscale large hotels require degreed individuals who have obtained a baccalaureate level of education in a specific specialty.

We pointed out that the size and the nature of the petitioner’s business should be taken into account. The petitioner employed 140 employees, had 223 guest rooms, and had gross annual income of $10 million.

When OOH states that most employers do not require degreed individuals for the same position, it, at the same time, implies that some employers do require bachelor’s degrees. The OOH also suggests that among various employers, the median salary of Food Service Managers with traveler accommodation employer is much higher than in limited-service eating places, full-service restaurants, or special food services. The higher salary suggests that the responsibilities of Food Service Manager at traveler accommodation facilities are more demanding than in other food and beverage facilities. We pointed out that it is logical to assume that the responsibilities of Food Service Managers at large luxury hotel accommodations are even more demanding that justify the requirement of a bachelor’s degree in a specific specialty.

Even though the Service requires documentary evidence to satisfy only one of the prongs of the test for “specialty occupation”, it is a better practice to include evidence on each of the prongs to make sure that if the Service does not accept one piece of evidence, it will accept other proof as an alternative.

For the second prong, the petitioner submitted numerous job listings and several letters from similar organizations, i.e., other employers in the same business – large luxury hotels and resorts to show that it is a common industry practice among these employers to hire individuals for the position of Food Service Manager who have at least a bachelor’s degree in hotel management or a related field, or its equivalent. Additionally, we submitted a letter from a hospitality expert attesting to the fact that large hotels always require candidates for the position of Food Service Manager to possess a bachelor’s degree in the specific field.

As an alternative to demonstrating that the degree requirement is common to the industry in parallel positions among similar organizations, the petitioner may show that the proffered position is so complex or unique that it can be performed only by an individual with a degree. For this, we explained the complexities and uniqueness of the Food Service Manager position in a luxury hotel setting and at the petitioner’s business in particular.

Even if, according to the OOH, Food Service Manager position does not require a bachelor’s degree, the petitioner’s circumstances are unique and involve a much higher level of specialized knowledge than that recognized in the reference sources, thereby justifying a bachelor’s degree requirement.

Nature of the petitioner’s business, the size of the employer, nature of the duties, the level of responsibility, among other factors, is taken into account when analyzing the complexity of the job duties.

In our case, the beneficiary would report directly to the Director of Operations and would be responsible for directing and supervising the employees of the entire Banquet Department and a restaurant of the upscale hotel. We explained the proposed duties of the beneficiary in detail and emphasized his discretionary decision-making authority and exercise of independent judgment.

For this case, we also compared and contrasted the job duties at the large luxury hotel with duties of Food Service Managers at diners, restaurants, small and medium sized hotels taken from the job listings of these establishments. It was obvious from the evidence presented that the duties of Food Service Manager at the petitioner’s luxury business were much more demanding and complex than duties of Food Service Managers at other establishments.

Additionally, to prove the necessity of a degreed Food Service Manager, we presented Hotel’s awards, promotional materials, and news articles involving the Hotel.

For the third prong, we demonstrated that the petitioner normally requires its applicants for the position of Food Service Manager to have at least a Bachelor’s degree in Hotel and Restaurant Management, Hospitality Management or an equivalent degree, together with professional work experience in the field.

The employer’s requirement of a Bachelor’s degree in a specialized field was substantiated by the petitioner’s job posting for the position of Food Service Manager where the employer emphasized the need of a BA in a specific specialty and by the degrees of other Food Service Managers of the hotel.

The fourth prong also talks about the complexity and uniqueness of the job duties. Here, we emphasized again the specialized and demanding nature of Food Service Manager’s job duties.

Therefore, based on the documentary evidence provided, it was clear that a Food Service Manger at the petitioner’s business needed at least a baccalaureate level of education in a specific field in order to fulfill the duties and to ensure the company’s success and continued growth.

Filing a motion to reopen is only one of the options. There are other options that may be available to you considering the circumstances of your case. If you have any questions regarding filing a motion to reopen or require additional information, do not hesitate to contact our office.