dismissed H-1B Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 16774660 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: June 21 , 2021 
The Petitioner, a food service and restaurant business, seeks to temporarily employ the Beneficiary as 
a "fusion kitchen senior chef' under the H-lB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C . § 1101(a)(15)(H)(i)(b) . 
The H-lB program allows a U.S. employer to temporarily employ a qualified foreign worker in a 
position that requires both ( a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. On appeal, the Petitioner 
asserts that the Director erred and states that it will file a brief within 30 days. To date, we have not 
received a brief or additional evidence; we review the record as currently constituted . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
We review the questions in this matter de novo.2 Upon de nova review, we will dismiss the appeal. 
I. ANALYSIS 
Upon review of the entire record, 3 for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation under sections 
101(a)(15)(H)(i)(b), 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l); 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 
8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
The Director concluded that the Petitioner did not establish that the proffered position qualifies as a 
specialty occupation. In her decision, the Director thoroughly discussed the Petitioner's failure to 
meet any of the four regulatory criteria at 8 C.F.R. § 214 .2(h)(4)(iii)(A)(J)- (4). Upon consideration 
of the record, we adopt and affirm the Director's decision with the comments below . See Matter of P. 
Singh, Attorney, 26 l&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 
1 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
3 While we may not discuss every document submitted , we have reviewed and considered each one. 
1994); see also Chen v. INS, 87 F.3d 5, 7-8 (l st Cir. 1996) ("[I]f a reviewing tribunal decides that the 
facts and evaluative judgments prescinding from them have been adequately confronted and correctly 
resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" 
provided the tribunal's order reflects individualized attention to the case). 
As noted, on appeal, the Petitioner does not submit an additional brief or other evidence. Further, the 
statement submitted with the appeal does not sufficiently explain why the Director's determination 
was an "erroneous conclusion of fact." For example, the Petitioner asserts that it "provided a detailed 
education course information which correlates to the job duties of the offered position and explained 
the complexity of the cuisine being served at the employer's restaurant (Korean-Chinese fusion, which 
derives from 'Hwa-Gyo' community in Korea)." This statement appears to reference the Petitioner's 
own support letters and a brief discussion of education courses from the opinion letter. However, the 
assertion does not explain why the Director's analysis of this evidence was erroneous. 
The Petitioner states that the minimum requirement for the position is highly specialized knowledge 
in the fields of "hospitality, culinary, food service and management," which "can only be acquired 
through ... the attainment of a baccalaureate degree in the culinary industry." We disagree with the 
Director's determination that these fields are disparate. Nevertheless, we conclude that the Petitioner 
did not sufficiently establish how these fields relate to the specialized nature of the position or why 
these fields are required. For example, the Petitioner repeatedly asserts that its position is complex 
and specialized because it specializes in Korean-Chinese fusion food. However, the Petitioner does 
not explain how such specialized knowledge in Korean-Chinese fusion food could only be gained 
through a degree in the fields listed. Relatedly, the Petitioner provided a copy of the menu of the 
restaurant where the Beneficiary will work. However, the menu indicates the restaurant is a Korean 
restaurant and does not appear to indicate which, if any, menu items would fall within the category of 
Korean-Chinese fusion. This raises questions concerning the extent to which the specialty knowledge 
described is actually required. Likewise, the Petitioner does not explain the extent to which the 
minimum educational requirements relate to the ability to prepare or supervise the preparation of those 
items listed on the menu. 
We also note that the Petitioner provided an organizational chart for the restaurant where the 
Beneficiary will work. The chart lists what appears to be the proffered position of "fusion kitchen 
senior chef'' under the title "FKSC (Sous Chef)." This position is above the "line cooks" position but 
below the positions of "head chef' and "owners." Thus, the chart seems to distinguish the proffered 
position from that of the "head chef'' position. However, although the Petitioner discusses the 
proffered position's duties relative to supporting the owners, it does not explain the relationship 
between the proffered position and the head chef position. While the proffered position's duties 
indicate that the majority of the Beneficiary's time will be dedicated to cooking, the duties also include 
supervision of line cooks and some managerial duties including assisting owners "in selecting, hiring, 
managing, supervising, and terminating all kitchen staff." Such supervisory and management duties 
are also discussed as cited below in the opinion letter and appear to overlap with duties of a head chef 
or manager. The lack of explanation of the relationship between the positions and the inclusion of 
managerial duties undermines the Petitioner's description of the proffered position and does not 
explain the degree requirement for the position. 
2 
Next, the submitted o inion letter from 
of the states that: 
~~----~I faculty member 
The skills required to supervise and manage vendor relationship, assist owner in 
selecting and hiring, managing, supervising and terminating all kitchen staff: plan 
budgets for all kitchen and cooking inventory and equipment, and cook and lead main 
entree cooking line are learned and refined through courses of Hospitality, Restaurant 
Management, Culinary Arts, or related fields including Culture and Cuisine, Catering 
and Banquet Organization, Restaurant Operations, Food Service Facilities Planning, 
Hospitality Facilities Management, International Events, and Menu Planning .... 
Bachelor's degree programs in Hospitality, Restaurant Management, Culinary Arts, or 
related fields focus on developing students' understanding of industry-level food 
service and hospitality standards. Such degrees train students to organize major events, 
develop new recipes and menus, manage food service operations, and ensure customer 
satisfaction. 
As indicated by the Director, this explanation does not sufficiently explain how each of the qualifying 
fields of study is directly related to the duties of the position. Rather, the professor makes relatively 
brief declaratory statements regarding the fields of study collectively without referencing any 
supporting sources. We also question the professor's understanding of the nature of the position. His 
discussion ofrelevant coursework emphasizes the position's supervisory and management duties but, 
like the Petitioner, does not address the extent to which the proffered position's duties overlap with 
the Petitioner's "head chef' position. In the same way that he does not address similarities and overlap 
between positions within the Petitioner's organization, the professor also does not discuss with 
sufficient detail his conclusions regarding the similarity of the position to other positions in the 
industry. For example, the professor states that "most positions similar to the [proffered position at 
the Petitioner's company] require a four-year degree" and finds that the Beneficiary's skills are 
"reflective of the qualifications similar companies require within the industry." However, he does not 
provide examples of what he would consider as similar positions and companies or adequately explain 
how he reached the conclusion. 
Relatedly, the Petitioner's assertion on appeal that comparable positions in the industry require degrees 
similar to that of the Beneficiary appears to conflate the Beneficiary's qualifications with the minimum 
qualifications required to perform the duties of the position. The test to establish a position as a 
specialty occupation is not the education or experience of a particular beneficiary, but whether the 
position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. Here, 
evidence from the Department of Labor (DOL) discussed by the Director indicates most positions 
within the occupational category designated by the Petitioner, namely "Chefs and Head Cooks" (SOC 
code 35-1011.00), only require training in "vocational schools, related on-the-job experience, or an 
associate's degree" and that"[ m Jost chefs and head cooks learn their skills through work experience." 4 
As noted, although the submitted opinion letter also claims a bachelor's degree is normally required 
4 See summmy Report for: 35-1011.00 - Chef.~ and Head Cooks, O*NET OnLine Archives, 
https://www.onetonline.org/Archive_ ONET-SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summary/35-1011.00 (last visited 
June 21, 2021); Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Chefs and Head Cooks, 
available at https: //www.bls.gov/ ooh/food-preparation-and-serving/ chefs-and-head-cooks.htm ?view_ full#tab-4. 
3 
for similar positions in the industry, this opinion was not supported by sufficient facts or data. Instead, 
the professor reaches his conclusion citing only to his expertise in the field after noting that he 
reviewed the DOL sources discussed by the Director. However, he does not adequately explain what 
about the proffered position would separate its duties from most other positions within the same 
occupational category that require less than a bachelor's degree for entry. 
In fact, regarding the Beneficiary's qualifications, the Petitioner stated in its response to the Director's 
request for evidence that "[n]ormally in the U.S., people who can execute the Korean-Chinese fusion 
food are individuals who are Korean-Chinese (or also referred to as 'Hwa Gyo'), who immigrated to 
the U.S. or individuals who have gained the specialty training through education and or extensive real 
work experience." The Petitioner goes on to state that the Beneficiary is qualified for the position 
based on both his education and experience. However, although education may be one method to gain 
the necessary skills for the position, this statement appears to support the conclusion that a range of 
educational credentials, including those less than a bachelor's degree in a specific specialty, may 
qualify an individual to perform the duties of the proffered position. 
II. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden here, 
and the petition will remain denied. 
ORDER: The appeal is dismissed. 
4