Research Information: Federal Immigration Cases and Agency Decisions deportation /p h-1b Note: Interesting note on case. Note the two prong test --- that just might be useful for law suit against companies that demand US workers train the H-1Bs. 2 of 2 DOCUMENTS Shanti, Inc., d/b/a Moghals Fine Indian Cuisine Restaurant, Plaintiff, v. Janet Reno, Attorney General of the United States, and Natalie Vedder, Director United States Immigration & Naturalization Service (INS), Northern Service Center, Defendants. Civil File No. 97-2777 (MJD/AJB) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA    36 F. Supp. 2d 1151; 1999 U.S. Dist. February 16, 1999, Decided DISPOSITION: [**1] Defendants' Motion to Dismiss DENIED. Plaintiff's Motion for Summary Judgment DENIED. Defendants' Motion for Summary Judgment GRANTED. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff restaurant petitioned to classify an employee as a nonimmigrant temporary worker pursuant to § 8 of the Immigration and Nationality Act, U.S.C.S. § 1101(a)(15)(H)(i)(b). Plaintiff filed a motion for summary judgment, and defendant federal immigration agency filed a cross-motion for summary judgment. OVERVIEW: Plaintiff restaurant filed a petition with defendant agency for nonimmigrant temporary worker status under 8 U.S.C.S. § 1101(a)(15)(H)(i)(b) on behalf of a restaurant manager. In support of the petition, plaintiff asserted that the beneficiary had a degree in business administration and had eight years experience. Defendant agency determined that plaintiff failed to prove that the position of restaurant manager qualified as a specialty occupation. Plaintiff's administrative appeal was also dismissed. On further appeal to the court, the court determined that the degree was not a realistic prerequisite to the occupation. Accordingly, the court held that the agency did not inexplicably depart from established precedent when it held that the beneficiary's degree did not constitute a degree in a specialized field. The court also held that the experience of the beneficiary was insufficient to fulfill the statutory requirements. The court granted defendants' motion for summary judgment. OUTCOME: The court granted defendant's motion for summary judgment and denied plaintiff's motion. The court held that a degree in business administration and similar experience did not qualify the beneficiary to succeed on the petition because the occupation of restaurant manager was not a specialty occupation. CORE TERMS: occupation, specialty, alien, restaurant, profession, visa, manager, nonimmigrant, judicial review, removal, qualify, beneficiary, baccalaureate, specialized, business administration, duty, regulation, bachelor, qualified to perform, agency action, abuse of discretion, industry standard, normally, subject matter jurisdiction, jurisdiction to review, food, minimum requirement, attainment, provision of law, summary judgment [text snipped] COUNSEL: For Plaintiff: Herbert A. Igbanugo, Hassan & Reed, ltd. For Defendants: Friedrich A.P. Siekert, Assistant U.S. Attorney. JUDGES: MICHAEL J. DAVIS, United States District Court. OPINIONBY: MICHAEL J. DAVIS OPINION:     [*1153] ORDER    This matter is before the Court on the motion of Plaintiff Shanti, Inc. ( "Shanti"), d/b/a Moghals Fine Indian Cuisine Restaurant ("Moghals"), for summary judgment and Defendants' cross motion for summary judgment and motion to dismiss for lack of subject matter jurisdiction. Plaintiff seeks declaratory judgment and injunctive relief from the decision of the Immigration and Naturalization Service ("INS") and the INS Administrative Appeals Unit ("AAU") denying its petition to classify Nancy James ("James") as a nonimmigrant temporary worker and accord her H-1B status under the Immigration and Nationality Act § 101(a)(15)(H)(i)(b) ("INA"), 8 U.S.C. § 1101(a)(15)(H)(i)(b). Shanti asks this court to void the denial of H-1B status to James and compel the INS to approve Shanti's petition.    BACKGROUND I. Legal Standards for H-1B [**2] Status     [HN1] 8 U.S.C. § 1101(a)(15)(H)(i)(b) provides for the temporary admission of a nonimmigrant alien: to perform services . . . in a specialty occupation described in section 1184(i)(1) of this title . . . who meets the requirements for the occupation specified in section 1184(i)(2) of this title . . . and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with the Secretary an application under section 1182(n)(1) of this title.     [HN2] 8 C.F.R § 214.2(h)(4)(i)(A)(1) provides that an H-1B classification may be granted to an alien who: will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.     [HN3] To qualify for a nonimmigrant H-1B visa, an alien must satisfy a two-prong test: (1) the position [**3] that the alien seeks to occupy must qualify as a "specialty occupation"; and (2) the alien must herself be qualified to perform services in said occupation. See, e.g., Augat, Inc. v. Tabor, 719 F. Supp. 1158, 1160 (D. Mass. 1989); Globenet, Inc. v. Attorney General, 1989 U.S. Dist. LEXIS 7154, 1989 WL 132041 at *2 [*1154] (D. D.C. 1989). The alien beneficiary and the employer petitioner bear the burden of proof in an administrative proceeding to determine whether the alien and the employer petitioner satisfy the two-prong test. See 8 U.S.C. § 1361 ("Whenever any person makes application for a visa . . . the burden of proof shall be upon such person to establish that he is eligible to receive a visa).    A. The Specialty Occupation     [HN4] 8 U.S.C. § 1184(i)(1) and (2) define a "specialty occupation" as requiring: (1)(A) theoretical and practical application of a body of highly specialized knowledge, and (1)(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, (2)(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (2)(B) [**4] completion of the degree described in paragraph (1)(B) for the occupation, or (2)(C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.    Similarly, [HN5] 8 C.F.R § 214.2(h)(4)(ii) provides that: Specialty occupation means an 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.    The list of professions included in 8 C.F.R § 214.2(h)(4)(ii) is not exhaustive, see, e.g., Matter of Chu, 11 I. & N. Dec. 881, 882 (1966); Augat, 719 F. Supp. at 1160; Omni Packaging, Inc. v. INS, 733 F. Supp. 500, 502 (D. Puerto Rico 1990); Matter of Shin, 11 I. & N. Dec. 686, 687 [**5] (1966), and accordingly, the INS has developed criteria by which to determine whether a non-enumerated occupation qualifies as a specialty occupation. The INS criteria are set forth in [HN6] 8 C.F.R § 214.2 (h)(4)(iii)(A), which establishes four standards, one of which an occupation must meet to qualify as a specialty occupation: (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 of 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 are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.    Thus, [HN7] to determine whether an occupation qualifies as a specialty occupation, the INS will examine "whether there is a general requirement of specialized study for the post, coupled [**6] with whether the position has complex and discretionary duties normally associated with professional posts." Augat, 719 F. Supp. at 1161 (citing Matter of Perex, 12 I. & N. Dec. 701, 702 (1968); Mindsey v. Ilchert, No. C-84-6199-SC (N.D. Cal. Dec. 11, 1987); Matter of Sun, 12 I. & N. Dec. 535 (1967)).    B. The Alien Beneficiary     [HN8] 8 C.F.R § 214.2(h)(4)(iii)(C) sets forth four criteria to determine whether the beneficiary of a petition for H-1B status is qualified to perform services in a specialty occupation under 8 U.S.C. § 1184(i)(1) and (2). An alien must fulfill one of the four criteria: (1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university; (2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the [*1155] specialty occupation from an accredited college or university; (3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or (4) Have education, [**7] specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.     [HN9] 8 C.F.R § 214.2(h)(4)(iv) also provides that a petition for H1-B classification in a specialty occupation shall be accompanied by: documents, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is qualified to perform services in a specialty occupation.    Accordingly, as both the INS and federal courts have noted, "a degree is not necessary" for an alien to qualify to perform services in a specialty occupation; "what is necessary is education and knowledge equal to a baccalaureate level of education." Globenet, 1989 WL 132041 at *2; see also, Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F. Supp. 712, 716 (N.D. Cal. 1988); Augat, 719 F. Supp. at 1160-61; Matter of Sun, 12 I. & N. Dec. 535. II. Shanti's Petition    In January 1996, Shanti, [**8] d/b/a/ Moghals Fine Indian Cuisine Restaurant, Inc. ("Moghals"), filed a Form I-129, Petition for Nonimmigrant Worker, with the Nebraska Service Center of the INS to classify James, a citizen of Bangladesh, as a nonimmigrant temporary worker under INA § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b) to perform services as restaurant manager. Moghals is a restaurant engaged in the market of fine dining, with fourteen employees and an asserted gross annual income of $ 185,000. See AU decision at 2. The duties involved in the role of restaurant manager at Moghals, as set forth by Petitioner, include: (1) "ensuring the efficient and profitable operation of the restaurant, including establishing standards for personnel administration and performance, advertising, publicity, food selection, wine selection, service and dining room planning, bar and banquet operations;" (2) making financial decisions regarding allocation of funds, authorization of expenditures, and budgetary planning; (3) delegating the duty of hiring and firing employees; (4) directing "all aspects of operations including cost estimates dealing with food suppliers, purchasing, security maintenance and general [**9] supervision;" (5) ensuring "consistent quality in food preparation and service" by recruiting, training, and supervising workers; (6) keeping records of employee hours and wages, preparing payroll, and ensuring compliance with licensing, tax, wage and hour, unemployment compensation, and social security laws; (7) maintaining records of the cost of supplies and equipment and ensuring regular payment of all accounts. Pl. Mem. Opp. Summ. J. at 15-16; AAU decision at 5.    Pursuant to 8 C.F.R § 214.2(h)(4)(iv), Petitioner presented the INS Service Center and the AAU with evidence to substantiate its claim that James meets the fourth criterion set forth in 8 C.F.R § 214.2(h)(4)(iii)(C) for establishing eligibility as a beneficiary qualified to perform services in a specialty occupation. In support of its petition, Shanti submitted: letters of reference from James' former employers-KHK Scaffolding & Formwork Limited, Renardet Consulting Engineers, and Lucky-Goldstar International Corp.; James's certificate of completion of Word Processing Training from the Computer Training Institute of Dhaka; James's certificate of completion of the Secretarial Science Course from the Young Women's Christian [**10] Association of Dhaka ("YWCA"); a copy of James' diploma certifying her receipt of a Bachelor of Arts degree from the University of Dhaka; James' curriculum vitae; and a professional credentials evaluation of K. Davis Hirschey of Personnel Management, Inc., consultant in human resources leadership. The Hirschey evaluation asserts that James' foreign education and experience are equivalent "in quantity and quality" to a bachelor 's degree in the U.S. See Administrative Record ("AR") Defendants' Exhibit [*1156] at 125. The Hirschey report states in relevant part that: Ms. James successfully completed several programs of study resulting in a Bachelor of Arts degree [in economics] from Tejgoan College, at the University of Dhaka in Bangladesh. Her educational background, continuing instructional course work and subsequent diploma have technically prepared her for a variety of positions in many traditional business professions . . . Ms. James has held positions of increasing responsibility in various aspects of business management. The experiences included exposure to domestic and international service markets and involved general administrative duties along with specific budgetary, [**11] finance reporting, and control responsibilities. . . Given Ms. James' 10 plus years of experience in the service industry and particularly the Finance and Control functions, coupled with her Diploma and Bachelor of Art's [sic] Degree, she would qualify as having the appropriate equivalent United States experience for a Bachelor's Degree. AR Defendant's Exhibit at 124-125.    The Hirschey report also implicitly asserts that the position of restaurant manager is a specialty occupation, ordinarily requiring a bachelor's degree in business management, stating in relevant part that: Given the documentation and facts surrounding the Moghals Restaurant and Ms. James' relationship, I find your client's case credible . . . Ms. James' anticipated rate of compensation, $ 38,000 per annum, in addition to benefits is competitive to slightly higher than rates being paid experienced U.S. college graduates with Bachelor's Degrees pursuing hospitality or restaurant industry careers. The stature and responsibilities afforded Ms. James by her potential employer further attest to the significance of her background and experience with regard to a professional in the business management [**12] field. AR Defendants' Exhibit at 125.    To support further its assertion that the position of restaurant manager at Moghals is a specialty occupation, Shanti offered a letter written by Mohammed Azad Alam, president and owner of Moghals Fine Indian Cuisine Restaurant, Inc. and secretary of Shanti, Inc., stating that "given the level of these responsibilities [for the available position of restaurant manager at Moghals], we will ordinarily expect an applicant to have at least a Bachelors Degree in Business Administration or a related subject." AR Defendants' Exhibit at 118, 130. Shanti also submits excerpts from the Department of Labor Occupational Outlook Handbook, 1994-1995 ("Handbook") which provide that: most food service management companies and national or regional restaurant chains also recruit management trainees from among the graduates of 2-year and 4-year college programs. Food service and restaurant chains prefer to hire persons with degrees in restaurant and institutional food service management, but they often hire graduates with degrees in other fields who have demonstrated interest and aptitude. Handbook at 69; AR Defendants' Exhibit [**13] at 105.    On April 2, 1996, the NSC Director denied Shanti's petition, determining that Shanti failed to meet any of the four criteria set forth in 8 C.F.R. § 214.2(h)(4)(iii)(C) and thus failed to prove that the position of restaurant manager qualified as a specialty occupation. The NSC Director determined that the Department of Labor Handbook "demonstrates that a college degree in the food service industry is a preference and not a requirement to be a restaurant manager . . .[and] that [while] a bachelor's degree is desirable, . . . it is not a necessity to be a restaurant manager." NSC Director decision at 95. n1 The Director further found that Shanti also failed to demonstrate that the duties of the post at issue are so complex, [*1157] unique, and distinct from other restaurant management positions that a restaurant manager at Moghals requires a specialized baccalaureate degree, despite lack of a common industry standard requiring such higher education. NSC Director decision at 4. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -    n1 The Director noted that the paragraph immediately prior to that cited by Petitioner states that "many restaurant and food service manager positions are filled by promoting experienced food and beverage preparation and service workers." NSC Director decision at 3 (citing Handbook at 69). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**14]    Shanti appealed the decision to the AAU, which dismissed Shanti's appeal on July 14, 1997. The AAU agreed that the position of restaurant manager did not require a specific degree in business administration and was therefore not a specialty occupation and further held that James was not qualified to perform services in a specialty occupation. The AAU found that: a degree in business administration alone is insufficient to qualify the holder as a member of the professions or a specialty occupation unless the academic courses pursued and the knowledge gained are realistic prerequisites to a particular occupation within the broad field of business administration and unless that person is engaged, or intends to engage, in that occupation. AAU decision at 3. The AAU determined that the course work completed by James for receipt of her bachelor of arts degree from the University of Dhaka, her Certificate in Word Processing from the Computer Training Institute of Dhaka, and her Certificate in Secretarial Science from the Young Women's Christian Association of Dhaka ("YMCA") did not constitute specialization in a specific field of study, precluding James from fulfilling the [**15] 8 C.F.R § 214.2(h)(4)(iii)(C) requirements based on her educational experience alone. The AAU then looked to James' work experience and determined that eleven years of employment-as first a secretary and later a credit controller with KHK Scaffolding, an administrative assistant with Lucky Goldstar International, Corp., and a secretary with Renardet, S.A.-failed to constitute experience directly related to a specialty occupation. AAU decision at 4. Accordingly, the AAU found that James' employment experience was insufficient to overcome her lack of a degree in a specific and specialized area of business administration and that, as James did not possess a bachelor's degree from the U.S. or an equivalent foreign degree nor a state license, registration, or certification authorizing her practice in a specialty occupation as required by criteria one, two, and three of 8 C.F.R § 214.2(h)(4)(iii)(C), she was not qualified to perform services in a specialty occupation. [text snipped]    C. Beneficiary Qualifications    As set forth above, the AAU determined that Shanti was unable to demonstrate that James' education and employment experience constituted the equivalent of a bachelor's degree in a specialized area, as required for fulfillment of criterion four of 8 C.F.R § 214.2 (h)(4)(iii)(C), and as James did not meet any of the other three criteria set forth in 8 C.F.R § 214.2 (h)(4)(iii)(C), the AAU found that she was not qualified to perform services in a specialty occupation.    The INS has frequently held that a general degree, such as that in business administration, absent specialized experience, is insufficient to qualify an alien beneficiary as a "member of the professions." See Matter of Ling, 13 I. & N. Dec. 35, 37 ("a petitioner with a business administration degree must clearly establish a particular area and occupation in the field of business administration in which he is engaged or plans to be engaged and must also establish [**35] that he meets the special academic and experience requirements of that designated activity, as a prerequisite to a determination as to professional status."); Matter of Shin, 11 I. & N. Dec. at 688 ("The mere acquisition of a degree or equivalent experience does not, of itself, qualify a person as a member of a 'profession.' The knowledge acquired must also be of nature that is a realistic prerequisite to entry into the particular field of endeavor."); see also, Hird/Blaker Corporation v. Slattery, 764 F. Supp. at 875. Furthermore, the INS has explicitly rejected suggestions of derogation of the requirement that an alien beneficiary possess a baccalaureate degree or its [*1163] equivalent in a "specific occupational specialty" (emphasis added), stating that the elimination of the term "specific" "would mean that any field in which a college or university grants a degree would become a profession . . . The Service does not believe that Congress ever intended such a broad interpretation of the term 'profession.' . . . The Service is opposed to such a broad interpretation and has no legal basis for making such a change." 55 Fed. Reg. 2606, 2609 (Jan. 26, 1990). In an unpublished decision [**36] addressing the INS denial of an H-1B visa for the position of restaurant manager, the Sixth Circuit similarly upheld an INS decision that found a general degree in business administration, absent specific relevant experience, insufficient to render the alien a "member of the professions." China Chef, Inc. v. Puelo, 12 F.3d 211, 1993 WL 524276 (6th Cir. 1993). The court in China Chef distinguished Matter of Sun, 12 I. & N. Dec. 535 (Dist. Dir. 1966), in which an alien beneficiary seeking H-1B status for employment as a hotel manager was deemed a member of the professions, by noting that, while the beneficiary in China Chef "possesses only a general degree in business administration and has apparently never worked in a restaurant before," China Chef, 1993 WL 524276 at *1, the alien in Matter of Sun had a "specialized degree in hotel management and . . . three years of experience in that field." China Chef, 1993 WL 524276 at *1 (emphasis added). Like the alien beneficiary in China Chef, James arguably possesses a degree in business administration and has no previous experience in the field of restaurant management.    The Court notes that the above-cited [**37] authority, however, addresses petitions for H-1B nonimmigrant visas filed with the INS under 8 U.S.C. § 1101 (a)(15)(H)(i) prior to passage of the Immigration Act of 1990, Public Law No. 101-649, on November 29, 1990. Prior to its 1990 amendment, 8 U.S.C. § 1101 (a)(15)(H)(i) provided that "an alien having residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability" was classified as an H-1 nonimmigrant. See also 8 C.F.R. § 214.2 (h)(1)(ii)(A). 8 C.F.R. § 214.2(h)(4)(i)(A) defined an "alien of distinguished merit and ability" as "one who is a member of the professions or who is prominent in his or her field," and [HN24] 8 C.F.R. § 214.2(h)(4)(ii)(A) defined "profession" as: an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such fields of human endeavor as: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, [**38] theology, and the arts. A profession requires completion of a specific course of education at an accredited college or university, culminating in a baccalaureate or higher degree in a specific occupational specialty, where attainment of such degree or its equivalent is the minimum requirement for entry into the profession in the United States. There are two categories of persons who do not meet these requirements but are nevertheless regarded as members of a profession. They are: persons who, after passage of normal professional tests and requirements, are granted full state licenses to practice the profession; and persons who lack the required degree but, by virtue of a combination of education, specialized training and/or professional experience are recognized as members of a profession and are in fact lawfully practicing at a professional level. Significantly, the criteria presently set forth in 8 C.F.R § 214.2(h)(4)(iii)(A) to qualify an occupation as a "specialty occupation" and the standards for a position to qualify as a "profession" are substantially similar. n5 Furthermore, the criteria set forth by 8 C.F.R § 214.2 (h)(4)(iii)(C) [*1164] to determine whether an alien beneficiary [**39] seeking H-1B status is qualified to perform services in a specialty occupation and the standards for qualification as a member of the professions contain no legally significant differences. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -    n5 With the exception of inconsequential word substitutions, the sole distinction between the 8 U.S.C. § 214.2(h)(4)(iii)(A) prior to and subsequent to the 1990 amendments is that under the pre-1990 regulations, 8 C.F.R § 214.2 (h)(4)(iii)(A) set forth a fifth criterion for qualification as a profession not available for qualification as a specialty occupation, providing that a position whose "level of responsibility and authority are commensurate with professional standing may qualify as a profession." - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -    In the present case, the AAU relies on Matter of Ling, supra, to support its denial of the visa at issue and explicitly distinguishes the instant visa petition from that filed in Hong Kong T.V., supra, see AAU decision at 3, 5-6; both cases were decided under 8 U.S.C. § 1101 prior to the 1990 amendments. After extensive [**40] discussion of Matter of Ling and Hong Kong T.V., the AAU asserts that cases cited by petitioner decided under 8 U.S.C. § 1101 prior to the 1990 amendments "deal with the professional status of individuals or occupational positions. While the terms 'profession' and 'specialty occupation' are close in meaning, they are not synonymous. Counsel has not established the relevance of those decisions to this proceeding." AAU decision at 6. The AAU decision issued in the present case is therefore internally contradictory-both relying on and rejecting cases applying the "profession" standard in lieu of the current "specialty occupation" standard.    As set forth above, an agency's interpretation of its own regulations is accorded substantial deference and is controlling unless clearly erroneous or inconsistent with the regulations. See supra. This Court finds that the INS's significant reliance on and treatment of decisions reached under the pre-1990 laws belies its assertion that said decisions are inapposite to the present matter and, according the INS its due deference, finds that the INS's treatment of precedent developed under the "profession" standard as relevant to the interpretation [**41] of the "specialty occupation" standard is not clearly erroneous nor inconsistent with regulations. Nonetheless, this Court notes that the INS has applied a double standard to its treatment of the present matter-considering cases decided under the pre-1990 laws and regulations if favorable to its position and rejecting them as inapposite if presented by Petitioner; this Court finds such behavior by the INS repugnant and deplorable.    Accordingly, and in light of the above-described precedent, this Court determines that the INS did not inexplicably depart from established policy or precedent nor demonstrate an improper understanding of the law when it held that a degree in business administration does not constitute a degree in a specialized field. The INS has also examined the employment experience presented by Petitioner and has set forth evidence and provided a rational explanation to substantiate its determination that James' education combined with subsequent employment experience is insufficient to fulfill the requirements set forth in 8 C.F.R § 214.2 (h)(4)(iii)(C). Furthermore, the INS' evaluation in the present case is consistent with past precedent, which states that [HN25] "[a] [**42] combination of education and experience may be considered equivalent to a professional degree, but usually only when a substantial amount of specialized academic course work is combined with employment and training which are documented as conveying to the employee professional knowledge and competency." Matter of Caron International, 19 I. & N. Dec. 791 at 798-99; see also Globenet, 1989 WL 132041 at *4 (finding that "case law also accommodated those rare instances where individuals attain professional standing through directed experience and specialized noninstitutional instruction" (emphasis added) (citing In re Matter of Portugues, I.D. # 2982)). Thus, this Court finds that the INS did not abuse its discretion as to the determination regarding the alien beneficiary in the present case.    D. Restaurant Manager as a Specialty Occupation    The AAU also affirmed the decision of the NSC Director that petitioner was unable to demonstrate that the position of restaurant manager fulfilled any of the criteria set forth in 8 C.F.R § 214.2 (h)(4)(iii)(A) required to qualify as a "specialty occupation."    The AAU found that the petitioner "has failed to show that "similar [**43] firms require the services of such individuals in parallel positions." AAU decision at 5. Thus, the INS determined that Petitioner is unable to demonstrate that the degree requirement is an industry standard in parallel positions among similar firms. See, e.g., Central Indonesian [*1165] Trading Company, 1990 WL 161020 at *4; (citing Matter of Caron Int'l, Inc. 19 I. & N. Dec. 791); Hird/Blaker, 764 F. Supp. at 875; Hong Kong T.V., 685 F. Supp. 712; China Chef, 1993 WL 524276 at *2.    In a letter dated February 8, 1996, the NSC Director requested the Petitioner submit documentation to show that "it is normal practice for similar firms to employ individuals with baccalaureate degrees in a specialized area in parallel positions." Factors often considered by the INS when determining industry standard include: whether the Occupational Outlook Handbook reports that the industry requires a degree, whether the industry's professional association has made a degree a minimum entry requirement, and letters or affidavits from firms or individuals in the industry testifying that such firms "routinely employ and recruit only degreed individuals." Hird/Blaker, 712 F. Supp. 1095, [**44] 1102 (citations omitted). The record in the present case contains only excerpts from the Handbook--explicitly found by the INS as not supporting a finding that industry standard normally contemplates a degree requirement--and copies of two similar prior visa petitions approved by the INS, see AR at Defendants' Exhibit, 31-91, which the INS has found to have been "approved in error." AAU decision at 7. The Court therefore finds that the INS did not abuse its discretion in finding that Petitioner failed to fulfill the industry standard requirement under 8 C.F.R. § 214.2(h)(4)(iii)(A).    The Petitioner need not fulfill the industry standard requirement, however, if it can demonstrate that the position at issue meets other criteria enumerated in 8 C.F.R. § 214.2(h)(4)(iii)(A). Accordingly, the NSC Director, in her letter of February 8, 1996, requested that Petitioner submit: (1) "documentation such as job advertisements in newspapers, job descriptions, etc." to demonstrate that a baccalaureate degree or its equivalent is normally the minimum requirement for entry into the position of restaurant manager; and (2) "documentation to show that individuals with baccalaureate or higher [**45] degrees in a specialized area have been employed in the past," noting that "the employer's mere statement that a degree is required is not good enough." Despite sufficient opportunity, Petitioner failed to submit the requested information and instead relied on Moghals' assertion that a degree was required to fill its post of restaurant manager.    The INS then examined the specific duties of the position of restaurant manager at Moghals to determine whether they are so complex or unique that their performance requires an individual with a degree. The INS contrasted the present position and its enumerated duties with the post and duties at issue in Hong Kong T.V., cited by Petitioner. In Hong Kong T.V., the court held that the INS abused its discretion by finding that the position of president of the largest Asian language video cassette distributor in the U.S., with a gross annual income of approximately $ 10 million, was not a specialty occupation. See AAU decision at 5. The president in Hong Kong T.V. was responsible for the "direct oversight over [sic] 70 employees and over 700 sublicensees," see AAU decision at 5, and oversees monthly operating expenses [**46] of $ 150,000; controls a standard inventory of $ 500,000; is responsible for corporate, financial planning, marketing, and promotional strategy; negotiates contracts with United States licensees and Hong Kong HKTVB; supervises legal actions against video 'pirates'; works videotape anti-pirate technology; and makes high level decisions involving technical, legal and fiscal matters, capital improvements, and copyright infringement.  Hong Kong T.V., 685 F. Supp. at 714; see also AAU decision at 5-6. The AAU concluded that "the petitioner has not shown that the beneficiary's proposed duties will be as extensive and complex as those of the beneficiary in Hong Kong." AAU decision at 6. In China Chef, the court found that "the INS acted reasonably in considering the size and scope of . . . [the] business" and that "the skills required to be the manager of a small company are [not] necessarily the same as those required to be a manager at a large company." China Chef, 1993 WL 524276 at *2. Accordingly, although this Court may disagree that the duties required of restaurant manager at Moghals are not commensurate with duties of a "specialty occupation," the INS [**47] is not compelled to find that such [*1166] duties are "inherently specialized," complex or unique. See All Aboard Worldwide, 8 F. Supp. 2d at 381. As the INS has evaluated the complexity of the duties at issue in the present case, considering relevant factors and past precedent, this Court finds that the INS has not abused its discretion in this regard.    Furthermore, the INS has consistently refused to hold that managerial positions require a "member of the professions" or qualify as "specialty occupations." See, e.g. Matter of Caron International, Inc., 19 I. & N. Dec. at 794 (finding that "general managerial occupations . . . are normally not considered to be professional endeavors requiring specific academic degrees"). In China Chef, the Sixth Circuit upheld a district court's determination that "an academic degree is not a minimum requirement for entry into that occupation [restaurant manager]" China Chef, 1993 WL 524276 at *1, and that "general manager positions are usually not considered 'professional' positions requiring a degree." Id. at *1. In addition, in the present case, the baccalaureate degree allegedly required for Shanti's position of restaurant manager [**48] is one in business administration. As discussed above, a specialty occupation "must require a degree that involves a 'precise and specific course of study which relates directly and closely to the position in question' (citation omitted). An occupation that requires a general degree such as business administration . . . therefore, is not a 'profession." Hird/Blaker, 764 F. Supp. at 875; see also, Central Indonesian Trading Company 1990 WL 161020 at *4.    The Court therefore finds that the INS did not abuse its discretion by denying Moghals' petition for an H-1B visa for the alien beneficiary, James.    The Court has reviewed the facts, files, records, and proceedings herein and has found genuine issues of material fact.    Accordingly, IT IS HEREBY ORDERED THAT: Defendants' Motion to Dismiss be DENIED. Plaintiff's Motion for Summary Judgment be DENIED. Defendants' Motion for Summary Judgment be GRANTED.    LET JUDGMENT BE ENTERED ACCORDINGLY. Date: 2-16-99    MICHAEL J. DAVIS    United States District Court