dismissed H-1B Case: Culinary Arts

PUBLIC COPY 
U.S. Department of Homcland Security 
20 Mass Avc., N.W.. Rln. A3042 
Washi~~gton. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 019 54251 Office: lJEBFL4SKA SERVICE CENTER Date: sEp 0 2 2005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( I 5 )(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1101(a)(l5 )(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. AII documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that off~ce. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LrN 04 019 54151 
Page 2 
DISCUSSION: The director of the service center denied the nonimrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) oln appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a Japanese restaurant that seeks to employ the beneficiary as a Japanese chef. The petitioner, 
therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
section 101 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1 10 l(a)( l 5)(H)(i)(b). 
The director denied the petition on the ground that the proffered position is not a specialty occupation, and the 
beneficiary is not qualified to perform a specialty occupation. On appeal, counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. tj 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. tj 214.2(h)(4)(iii)(A), to qualiiy 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 parbcular 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. 
tj 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; (3) the petitioner's response to the director's request; (4) the 
LIN 04 019 54151 
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director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a Japanese chef. Evidence of the beneficiary's duties 
includes: the Form 1-129; the attachments accorr~panying the Form 1-129; the petitioner's support letter; and 
the petitioner's response to the director's request for evidence. According to this evidence, the beneticiary 
would perform duties that entail preparing, preserving, and marinating sushi as well as other dishes; ensuring 
quality control; and purchasing fish. The petitioner's advertisement stated that the proposed position requires 
three years of work experience in a Japanese restaurant. 
The director stated that the submitted evidence did not show that the petitioner requires a bachelor's degree 
for the proposed position. The director found that the proposed position resembles a chef as described in the 
Department of Labor's Occupa~ionul Outlook Hclndhook (the Hundbook), and that the Handbook discloses 
that this occupation does not require a bachelor's degree. According to the director, the beneficiary lacks the 
qualifications to perform a specialty occupation. 
On appeal, counsel states that the proposed position qualifies as a specialty occupation, and refers to a 
brochure from Sushi Hut to show that chefs have a rigorous training program. Counsel asserts that a chef 
must have proper training and work experience. Counsel discusses the preparation of sushi, the proposed 
position, the Handbook1,\- information about chefs, the four job advertisements, and the beneficiary's 
qualifications. Counsel contends that two to three years of work experience is the normal minimum 
requirement for entry into a position as a Japanese chef in a sushi restaurant, and is preferred over a degree. 
Counsel also states that the training of an assistant chef or an apprentice chef is regarded as the equivalent of a 
bachelor's degree. According to counsel, a bachelor's degree in a relevant field does not exist for this 
position as the skills required for a Japanese chcf are acquired through practice. Counsel emphasizes that 
work experience is the most important credential Lhat a sushi chef must have in order to apply for a sushi chef 
position, and that the petitioner has always required work experience as a prerequisite for the proposed 
position. 
Upon review of the record, the petitioner has 1:stablished none of the four criteria outlined in 8 C.F.R. 
tj 214,2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The petitioner's requirement of three years of work experience does not qualify the proposed position as a 
specialty occupation under the Act. The Act deiines the term "specialty occupation" as an occupation that 
requires theoretical and practical application of a body of highly specialized knowledge, and the attainment of 
a bachelor's or higher degree in the specific spr:cialty (or its equivalent) as a minimum for entry into the 
occupation in the United States. The phrase "or its equivalent" is considered by CIS only when a specific 
degree does not exist in an occupational field. Tu,qis Int '1 1,s. INS, 94 F.Supp. 26 172 (D. Mass. 2000). While 
counsel states that there is no degree program in the United States specifically designed to train chefs, the 
Handbook contradicts this. According to the Handbook, there are 4-year degree programs specifically related 
to the culinary arts. The Handbook states thit some executive chefs receive formal haining through 
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independent cooking schools, professional culinary institutes, or 2- or 4-year college degree programs in 
hospitality or culinary arts. 
Since the petitioner does not require a bachelor's degree for the proposed position, the petitioner falls to 
establish any of the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A): a baccalaureate or higher degree or its equivalent 
is the normal minimum requirement for entry into the particular position; a specific degree requirement is 
common to the industry m parallel positions among similar organizations; the position is so complex or 
unique that it can be performed only by an individual with a degree; the position normally requires a degree or 
its equivalent; or the nature of the specific duties is so specialized and complex that the knowledge required to 
perform them is usually associated with the attainment of a baccalaureate or higher degree. 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shill1 not disturb the director's denial of the petition on this 
ground. 
Because the proposed position does not qualify as a specialty occupation, whether or not the beneficiary 
qualifies to perform the proposed position is inconsequential in this proceeding. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.