dismissed H-1B Case: Culinary Arts

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 04 236 50127 Office: TEXAS SERVICE CENTER Date: Am 1 8 2006 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l S)(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 
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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 appeal will be dismissed. The petition will bc 
denied. 
The petitioner is an Indian restaurant with 2 employees, gross income of $190,000, was established in 2003, 
and seeks to employ the beneficiary as a chef. The petitioner, therefore, endeavors to classify the beneficiary 
as a nonirnrnigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. $ 1 101 (a)(l 5)(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. 
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. $ 214.2@)(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 (RFE); (3) the petitioner's response to the RFE; (4) the director's 
SRC 04 236 50127 
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denial letter; (5) the petitioner's appeal and counsel's appeal brief with new and supporting documentation. 
The AAO reviewed the record in its entirety before issuing it. decision. 
The petitioner is seeking the beneficiary's services as a r'lei.. l:vfde~~c .. of the beneficiary's duties includes: 
the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's appeal brief and new and 
additional documents. According to this evidence, the beneficiary's duties would be as follows: 
Supervise kitchen staff, plan meals, and purchase food ingredients for Indian cuisine; 
Estimate food consumption, and requisition food ingredients; 
Receive and examine food ingredients and supplies to ensure that they meet established 
standards and specifications in quality and quantity; 
Select and develop recipes of Indian cuisine based on type of food to be prepared applying 
personal knowledge and experience; and 
Manage and supervise personnel engaged in preparing, cooking, and serving meats, sauces, 
vegetables, soups, and other foods of Indian cuisine. 
The petitioner stated that a candidate for the proffered position must possess a bachelor's degree or its 
equivalent. 
The director determined that the proffered position was not a specialty occupation. Referring to the 
Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook), the director stated that 
generally restaurant chefs gain their knowledge through experience and training which may be acquired 
through a variety of ways, including vocational programs. The director found that the proffered position 
would not require a person with a bachelor's degree. 
On appeal, counsel states that the proffered position is a specialty occupation. Counsel narrates the duties of 
the proffered position, stating they require the level of slull and experience equivalent to a baccalaureate 
degree. Counsel contends that the duties required by the petitioner, as a growing company, include 
managerial responsibility. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 214.20(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $8 214.2(h)(4)(iii)(A)(I) that is, whether the evidence of 
record establishes that: a baccalaureate or higher degree or its equivalent is the normal minimum requirement 
for entry into the particular position. 
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In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determine-3, from a review of the duties of the position and any supporting evidence, whether the 
posilion ach,.tlIj- rzq-:r.=s the theoretical and practical application of a body of highly specialized knowledge, 
and th e".t:a.nn,cnt ~f a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation, as required by the Act. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. In its adjudication of this appeal the AAO consulted the 2006-2007 edition of the 
Handbook. The Handbook discloses that the duties of the proffered position are performed by an executive 
chef, an occupation that does not normally require a bachelor's degree in a specific specialty. The Handbook 
reports: 
Chefs, cooks, and food preparation workers prepare, season, and cook a wide 
range of foods-from soups, snacks, and salads to entrees, side dishes, and 
desserts-in a variety of restaurants and other food services establishments. 
Chefs and cooks create recipes and prepare meals, while food preparation 
workers peel and cut vegetables, trim meat, prepare poultry, and perform 
other duties such as keeping work areas clean and monitoring temperatures 
of ovens and stovetops. 
In general, chefs and cooks measure, mix, and cook ingredients according to 
recipes, using a variety of pots, pans, cutlery, and other equipment, including 
ovens, broilers, grills, slicers, grinders, and blenders. Chefs and head cooks 
also are responsible for directing the work of other kitchen workers, 
estimating food requirements, and ordering food supplies. 
Executive chefs and head cooks coordinate the work of the kitchen staff and 
direct the preparation of meals. They determine serving sizes, plan menus, 
order food supplies, and oversee kitchen operations to ensure uniform quality 
and presentation of meals. The terms chef and cook often are used 
interchangeably, but generally reflect the different types of chefs and the 
organizational structure of the htchen staff. For example, an executive chef is 
in charge of all food service operations and also may supervise the many 
kitchens of a hotel, restaurant group, or corporate dining operation. A chef de 
cuisine reports to an executive chef and is responsible for the daily 
operations of a single htchen. A sous cheJ; or sub chef, is the second-in- 
command and runs the kitchen in the absence of the chef. Chefs tend to be 
more highly slulled and better trained than cooks. . . . 
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With respect to training and qualifications for executive chefs, the Handbook states: 
Executive chefs and head cooks who work in fine-dining rt,;taurants require 
many years of training and experience and an intense desire to cook. Some 
chefs and cooks may start their training in high school or post-high school 
vocational programs. Others may receive formal training through 
independent cooking schools, professional culinary institutes, or 2- or 4-year 
college degree programs in hospitality or culinary arts. In addition, some 
large hotels and restaurants operate their own training and job-placement 
programs for chefs and cooks. Most formal training programs require some 
form of apprenticeship, internship, or out-placement program jointly offered 
by the school and affiliated restaurants. Professional culinary institutes, 
industry associations, and trade unions also may sponsor formal 
apprenticeship programs in coordination with the U.S. Department of Labor. 
Many chefs are trained on the job, receiving real work experience and 
training from chef mentors in the restaurants where they work. 
People who have had courses in commercial food preparation may start in a 
cook or chef job without spending a lot of time in lower-slulled kitchen jobs. 
Their education may give them an advantage when loolung for jobs in better 
restaurants. ... 
The AAO concurs with the director's determination that as reported in the Handbook chef positions do not 
require a bachelor's degree in a specific specialty. Accordingly, the petitioner has not established that a 
baccalaureate or higher degree or its equivalent in a specific specialty is the normal minimum requirement for 
entry into the proffered position, as required to satisfy the first criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
The AAO now turns to a consideration of whether the proffered position may qualify as a specialty 
occupation under either of the prongs of the second criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(2). Under the 
second alternative criterion, the petitioner must establish either that a degree requirement is common to the 
industry in parallel positions among similar organizations, or that the proffered position is so complex or 
unique that it can be performed only by an individual with a degree. 
The evidence of record does not establish the first prong of the second criterion - that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. Factors often 
considered by CIS when determining the criterion 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 Corp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
As already noted, the Handbook indicates that the proffered position is not one for which the normal minimum 
SRC 04 236 50127 
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hiring requirement is at least a baccalaureate degree in a specific specialty. There are no letters or affidavits from 
firms, individuals, or professional associations in the industry attesting to the specific minimum degree 
requirements for a position such as that proffered here. 
Thus, the petitioner has not established that the degree requirement is common to the industry in parallel 
positions among similar organizations. 
The record also does not include any evidence from firms, individuals, or professional associations regarding 
an industry standard. Therefore, the petitioner has failed to satisfy the first alternative criterion of 8 C.F.R. 
$214.2(h)(4)(iii)(A)(2), as the evidence of record does not establish that a specific degree requirement is 
common to the industry in parallel positions among similar organizations. 
As noted above, the petitioner has described duties normally performed by chefs. In the response to the RFE, 
in addressing the first, second, and fourth criteria, counsel refers to the Occupational Information Network 
(O*NET) to offer a further explanation of the proffered position's duties. The O*NET is not persuasive; it 
does not assess or specify whether an occupation requires a degree in a specific specialty. 
The AAO finds the petitioner to have provided no evidence that would support a finding that the job duties 
are so complex or unique that it can be performed only by an individual with a degree. Therefore, the record 
also fails to establish that the position qualifies as a specialty occupation under the second prong of the second 
criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) - the position is so complex or unique that it can be performed 
only by an individual with a degree. On appeal, counsel contends that the proffered position "demands 
academic and practical knowledge and skill" in certain "disciplines" that he lists. However, the evidence of 
record fails to establish that any of the listed disciplines manifest themselves in the proposed duties at so 
complex or unique a level that those duties can only be performed by a person with at least a baccalaureate 
degree in a specific specialty. 
As the record does not convey specific tasks that the beneficiary would perform, it does not establish the level 
of complexity or uniqueness that such duties may involve, or distinguish the position as more complex than or 
unique from those chef positions for which the Handbook indicates that there is no requirement for at least a 
bachelor's degree in a specific specialty. 
Counsel contends that because the petitioner is expanding, the duties of the proffered position satisfy the 
criterion's requirements. The AAO does not agree. The petitioner has not submitted the business 
development plans, or any other documentation as evidence to substantiate that expansion would require that 
the beneficiary possess at least a baccalaureate degree in a specific specialty. 
Accordingly, the petitioner has not established its position as a specialty occupation under either prong of the 
second criterion. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. $ 214,2(h)(4)(iii)(A)(3): that the 
petitioner normally requires a degree or its equivalent for the position. 
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Therefore, the proffered position has not been established as a specialty occupation under the requirements at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
No evidence in the record satisfies the regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4), namely, that the 
petitioner establish that the nature of the specific duties is so specialized and complex that the knowledge 
required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 
The record is limited to exclusively generalized duty descriptions that do not relate substantative dimensions 
of the work the beneficiary would actually perform. 
As limited as it is to generalized, generic descriptions of the proffered duties, the record of proceeding does 
not distinguish those duties from those generally performed by chefs. The Handbook indicates that such 
duties are not usually associated with a degree in a specific specialty, and the record contains no evidence to 
establish that the Handbook's information does not apply to the proffered position. 
Counsel asserts that chefs employed by large prestigious restaurants have been granted H-1B visas as 
evidence that the work of a chef qualifies as a specialty occupation. CIS'S previous approval of petitions for 
what might appear to be similar positions cannot serve as a basis for approving the instant petition. Each 
petition filing is a separate proceeding with a separate record and CIS is limited to the information contained 
in that record in reaching its decision. 8 C.F.R. $8 103.2(b)(16)(ii) and 103.8(d). 
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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.