dismissed H-1B Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 5673021 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 5, 2020 
The Petitioner, a full-service restaurant, seeks to temporarily employ the Beneficiary as an "executive 
chef' under the H-lB nonimmigrant classification for specialty occupations. See 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-1B 
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 Petitioner did not 
establish that the proffered position qualifies as a specialty occupation . 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. Upon de nova review, we will dismiss the appeal. 1 
I. ANALYSIS 
Upon review of the entire record, for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. 
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)(l)-(4). Upon consideration 
of the entire record, including the evidence submitted and arguments made on appeal, we adopt and 
affirm the Director's decision with the comments below. See Matter of P. Singh, Attorney, 
26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994)); see also 
Chen v. INS, 87 F.3d 5, 7-8 (1st 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). 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
On appeal, the Petitioner submits additional job advertisements, a list of executive chefs it claims hold 
"culinary degrees," and two letters from companies within the industry to demonstrate that a 
bachelor's degree in a specific specialty is a common industry requirement. Upon review, we've 
determined that the Petitioner's reliance on the newly submitted documents is misplaced. 
First, the additional job advertisements do not indicate that at least a bachelor's degree in a directly 
related specific specialty ( or its equivalent) is required. For instance, one of the advertised positions 
requires a bachelor's degree in culinary arts or an associate of occupational studies degree or a 
certificate in culinary arts and three years' experience; several other advertised positons require a 
bachelor's degree or equivalent education, training, or experience; and another advertised position 
states that a bachelor's degree in food services technology/management or related field is preferred. 
However, a preference is not an indication of a requirement, and for those employers accepting 
equivalent education, training, or experience, we do not know what formulation that employer would 
use to determine the equivalent of a bachelor's degree, and if the H-lB category would utilize the 
same standard to ensure that the advertisements represented the same "equivalent" standard. 2 Overall, 
the job postings suggest, at best, that although a bachelor's degree is sometimes required for these 
positions, a bachelor's degree in a spec[fic specialty (or its equivalent) is not. For these reasons, the 
Petitioner has not established that these job vacancy announcements are relevant. 3 
Second, the Petitioner submitted profiles for 12 individuals it claims are executive chefs within the 
industry. However, the Petitioner did not provide any information pertaining to the origins of the 
documentation submitted, nor did it submit the academic credentials of these individuals, e.g. copies 
of diplomas and transcripts. The Petitioner should note that the evidentiary weight of a professional 
profile from an undisclosed source is generally insignificant as it represents a claim by an individual, 
rather than evidence to support that claim. In the instant case, no further documentation was submitted 
of the individuals' asserted credentials. 
Third, the Petitioner submitted two letters from the President of Bollywood Bistro and a "personal 
chef' at MK Businesses. In sum, each of the authors state that a "culinary degree or college degree" 
is important for an executive chef to have. However, neither of the letters are supported by evidence 
or the necessary information to determine that the companies routinely employ or recruit only 
specifically degreed individuals for executive chef positions ( or parallel positions). As such, the letters 
are not sufficient to establish that there is a common industry requirement for a bachelor's degree in a 
specific specialty for the proffered position. 
2 See 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(D)(5). 
3 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to the 
industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated what 
statistically valid inferences, if any, can be drawn from the advertisements with regard to detennining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice 
of Social Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly 
selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently 
large. See id. at 195-196 ( explaining that "[r]andom selection is the key to [the] process [ of probability sampling]" and 
that "random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error"). 
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II. ADDITIONAL ISSUES 
A. Prevailing Wage 
Beyond the Director's decision, the petition also cannot be approved because the record of proceedings 
lacks probative evidence demonstrating that the Petitioner will offer a wage equal to or greater than 
that required by law. Section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), states that the 
Petitioner must offer wages that are at least "the actual wage level paid by the employer to all other 
individuals with similar experience and qualifications for the specific employment in question" or "the 
prevailing wage level for the occupational classification in the area of employment, whichever is 
greater." 
Here, on the LCA submitted in support of the petition the Petitioner designated the proffered position 
under the occupational category "Chefs and Head Cooks" corresponding to the SOC code 35-1011 at 
a Level III wage rate. The prevailing wage, at a Level III wage rate, for the occupational category 
"Chefs and Head Cooks" is $64,293 per year. The Petitioner attested on the Form I-129 and on the 
LCA, however, that it would only pay the Beneficiary $57,000 per year, which is $7,293 less than the 
required prevailing wage. It appears here, that the Petitioner will pay the Beneficiary a lower wage 
than that required. Therefore, as the Petitioner has not offered a wage that is equal to or greater than 
the prevailing wage, the petition cannot be approved for this additional reason. 
B. Beneficiary Qualifications 
Additionally, beyond the Director's decision, the Petition cannot be approved because the Petitioner 
has not demonstrated that the Beneficiary would be qualified to perform the duties of the proffered 
position if the job had been determined to be a specialty occupation. 
Here, according to the Evaluation of Academics completed by Silvergate Evaluations in April 2018, 
the Beneficiary "has attained the equivalent of three years of bachelor's-level studies from an 
accredited institution of higher education in the United States." The evaluation does not consider any 
practical training or work experience in reaching its conclusions. As such, the Beneficiary does not 
possess the requisite minimum education indicated by the Petitioner. However, a beneficiary's 
credentials to perform a particular job are relevant only when the job is found to be a specialty 
occupation. As discussed in this decision, the proffered position does not require a baccalaureate or 
higher degree in a specific specialty, or its equivalent. Therefore, we will not address the Beneficiary's 
qualifications further, but note that further information may be required to establish any equivalency 
in any further filings. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. 
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