dismissed H-1B Case: Culinary Arts

MATTER OF A-I- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY4,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a specialty food store, seeks to temporarily employ the Beneficiary as a ""chef" under 
the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act 
(the Act) § 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the proffered position qualities as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. 
The matter is no\v before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by finding that the proffered position is not a specialty occupation. 
Upon de nora review, we will dismiss the appeal. 
I. LAW 
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. 
The regulation at 8 C .F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of A-1- Inc 
(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 
(-I) 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. 
8 C.P.R.§ 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted 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 proposed 
position. See Royal Siam Corp. v. Chertoff; 484 F.3d 139, 147 (1st Cir. 2007) (describing ··a degree 
requirement in a specific specialty"' as "one that relates directly to the duties and responsibilities of a 
particular position''): Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the initial letter of support, the Petitioner stated that the Beneficiary will perform the following 
duties: 
[The Beneficiary] 
• Will direct and participate in the preparation, seasoning and cooking of Indian 
cuisine such as tandoori dishes, soups. fish, meats, vegetables. desserts and other 
wide range of specialty foods of Indian cuisine including soups, salads, entrees. 
and desserts. 
• It will be an integral part of I the Beneficiary's] duties to attract favorable attention 
of customer, media and others. He needs to have mastery in Indian cuisine and a 
uniqueness in culinary style. We are looking for talent that can make an impact 
on the city. 
• Determine how food should be presented and create decorative food displays. 
• Talk to patrons and answer questions. if any[.] 
• Will plan menus and price them. 
• Will order supplies, keep records and accounts. 
• Will manage inventory, purchasing. sanitation. food safety, kitchen work, food 
preparation and cooking, menu planning and management. 
• Will oversee daily food preparation, direct kitchen staff and handle any food­
related concerns. 
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Matter of A-1- Inc 
• Monitor sanitation practices to ensure that employees follow standards and 
regulations. 
• Check the quality of raw or cooked food products to ensure that standards are 
met. 
• Estimate amounts and costs of required supplies, such as food and ingredients. 
• Instruct cooks or other workers in the preparation, cooking, garnishing, or 
presentation of food. 
• Supervise and coordinate activities of cooks or workers engaged in food 
preparation. 
• Inspect supplies, equipment. or work areas to ensure conformance to established 
standards. 
• Order or requisition food or other supplies needed to ensure efficient operation. 
• Determine production schedules and staff requirements necessary to ensure timely 
delivery of services. 
• Check the quantity and quality of received products. 
According to the Petitioner, the position requires a bachelor's degree or its equivalent in any related 
field. 
In response to the Director's request for evidence (RFE), the Petitioner provided the following 
expanded description of the proffered position: 
1. Direct and participate in the preparation, seasoning and cooking of Indian cuisine 
such as tandoori dishes, soups. fish, meats, vegetables, desserts and other wide 
range of specialty foods of Indian cuisine including soups, salads. entrees. and 
desserts in a unique culinary style. Supervise and coordinate activities of cooks 
and workers engaged in food preparation. Approximately 20% of Beneficiary's 
time will be spent on this duty. 
2. Determine how food should be presented and create decorative food displays. 
Attract favorable attention of customer, media and others. Talk to patrons and 
answer questions, if any. Instruct cooks and/or workers in the preparation. 
cooking, garnishing, and/or presentation of food. Approximately 20% of 
Beneficiary's time will be spent on this duty. 
3. Plan menus for each day and price each item accordingly, with focus on daily 
specials. Estimate amounts and costs of required supplies. such as food and 
ingredients. Approximately 10% of Beneficiary's time will be spent on this duty. 
4. Order supplies, keep records of inventory and accounts. Check the quantity and 
quality of received products. Estimate amounts of costs of required food and 
ingredient items and coordinate with management to ensure timely delivery of 
sufficient amounts of foodstuff for day/meal. Approximately 20% of 
Beneficiary's time will be spent on this duty. 
5. Manage inventory, purchasing. sanitation, food safety, kitchen work. food 
preparation and cooking, menu planning and management. Monitor sanitation 
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Matter of A-1- Inc 
practices to ensure that employees follow standards and regulations. Check the 
quality of raw or cooked food products to ensure that standards are met. Inspect 
supplies, equipment. or work areas to ensure conformance to established 
standards. Approximately 20% of Beneficiary's time will be spent on this duty. 
6. Determine production schedules and staff requirements necessary to ensure timely 
delivery of services. Approximately 5% of Beneficiary's time will be spent 011 
this duty. 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position satisfies any of the criteria at 8 C.P.R. 
§ 214.2(h)( 4 )(iii)(A) and, therefore. qualifies as a specialty occupation. Specifically. the record does 
not establish that the job duties require an educational background, or its equivalent. commensurate 
with a specialty occupation. 1 
A. First Criterion 
We tum first to the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(J), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement f(lr 
entry into the particular position. 2 To inform this inquiry, we recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties 
and educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA) submitted in support of the H-1B petition. the Petitioner 
designated the proffered position under the occupational category "Chefs and Head Cooks .. 
corresponding to the Standard Occupational Classification code 3 5-1 011 at a Level I wage. 4 
1 The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted. we have reviewed and 
considered each one. 
2 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 All of our references are to the 2016-2017 edition of the Handbook, available at http://www.bls.gov/ooh/. We do not, 
however, maintain that the Handbook is the exclusive source of relevant information. That is. the occupational category 
designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered 
position, and USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of 
occupations that it addresses. To satisfy the first criterion, however. the burden of proof remains on the Petitioner to 
submit sufficient evidence to support a finding that its particular position would normally have a minimum. specialty 
degree requirement. or its equivalent, for entry. 
4 The "'Prevailing Wage Determination Policy Guidance'' issued by the DOL provides a description of the wage levels. 
A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering 
the experience, education, and skill requirements of the Petitioner's job opportunity. We will consider the Petitioner's 
classification of the proffered position at a Level I wage (the lowest of four assignable wage levels) in our analysis of the 
position. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to 
have a basic understanding of the occupation. This wage rate indicates: (I) that the Beneficiary will be expected to 
perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his 
4 
Matter of A-1- Inc 
The subchapter of the Handbook entitled "How to Become a Chef or Head Cook'' states: .. Most 
chefs and head cooks learn their skills through work experience." 5 It continues by stating that 
''Although postsecondary education is not required for chefs and head cooks, many attend programs 
at community colleges, technical schools, culinary arts schools, and 4-year colleges.'' 
The Handbook does not support the Petitioner's assertion that a bachelor's degree is necessary for 
entry into this occupation. RatheL according to the Handbook, postsecondary education is not 
required for these positions. This passage of the Handbook emphasizes the importance of work 
experience and does not indicate that there are any specific degree requirements for these jobs. 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Thus, the Petitioner has 
not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
B. Second Criterion 
The second criterion presents two, alternative prongs: ''The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternatire, 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first half casts 
its gaze upon the common industry practice, while the alternative prong narrows its f(.leus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the ··degree 
requirement" (i.e .. a requirement of a bachelor's or higher degree in a specific specialty. or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 
work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks 
and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance. 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http: '/tlcdatacenter.comidownload/ 
NPWHC _Guidance_ Revised _II_ 2009.pdf. A Level I wage should be considered for research fellows. workers in 
training. or internships. !d. 
5 U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook. 2016-17 ed., "Chefs and Head 
Cooks," http://www.bls.gov/ooh/food-preparation-and-serving/print/chefs-and-hcad-cooks.htm (last visited Apr. 29. 
2016). 
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Matter of A-1- Inc 
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 previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. Also, there are no submissions from the industry's professional association indicating 
that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit 
any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that 
such firms ·'routinely employ and recruit only degreed individuals." Thus, the Petitioner has not 
satisfied the first alternative prong of8 C.P.R.§ 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty. or its 
equivalent. 
In support of its assertion that the proffered posttlon qualifies as a specialty occupation, the 
Petitioner described the proffered position and its business operations. According to the Petitioner. it 
plans to expand its business operations and therefore needs a chef with a specialty degree or its 
equivalent. However, upon review of the documentation, we conclude that the Petitioner has not 
satisfied this criterion of the regulations. 
First, to establish eligibility, the Petitioner must describe the specific duties and responsibilities to be 
performed by the Beneficiary in the context of its business operations, demonstrate that a legitimate 
need for an employee exists, and substantiate that it has H-1 B caliber work for the Beneficiary for 
the duration of the employment period requested in the petition. A petition cannot be approved to 
meet potential business expansions. The H-1B classification is not intended as a vehicle for 
employers to bring in temporary foreign workers to meet possible workforce needs arising from 
potential business expansions or the expectation of potential new customers or contracts. 
6 
Further. a 
visa petition may not be approved at a future date after the Petitioner or Beneficiary becomes eligible 
under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm ·r 1978 ). 
Second, the Petitioner designated the proffered position as an entry-level position within the 
occupational category ''Chefs and Head Cooks" (by selecting a Level I wage). 7 This designation, 
6 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). The agency made clear long ago that speculative employment is 
not permitted in the H-1 B program. See, e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
7 The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex compared to other positions within the same occupation. Nevertheless, a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation 
Matter of A-1- Inc 
when read in combination with the Petitioner's job descriptions and the Handbook's account of the 
requirements for this occupation, further suggests that this particular position is not so complex or 
unique relative to other chefs that the duties can only be performed by an individual with a 
bachelor's degree or higher in a specific specialty, or its equivalent.8 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
C. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent for the position. 
To merit approval of the petition under this criterion. the record must establish that a petitioner's 
imposition of a degree requirement is not a matter of preference for high-caliber candidates but is 
necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. lvfeissner. 
201 F.3d at 388. Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruiting and hiring practices. as well as information 
regarding employees who previously held the position. 
According to the Petitioner, it temporarily used the services of a contractor to assist with basic food 
preparation, but the contractor was not qualified for the position because he was "'not professionally 
educated." The Petitioner states that the contractor met the basic needs of the kitchen but his core 
work was in other parts of the Petitioner's business operations. 
does not definitively establish such a classification. In certain occupations (e.g .. doctors or lawyers). a Level I. entry­
level position would still require a minimum of a bachelor's degree in a specific specialty. or its equivalent. for 
entry. Similarly, however. a Level IV wage-designation would not reflect that an occupation qualities as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty, or its equivalent. That is. a position's wage level designation may be a relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214( i)( I) of the Act. 
8 We further note that DOL guidance states that a Level II wage designation would be the proper classification for a 
position requiring the education and/or experience that are generally needed as described in DOL's Occupational 
Information Network (O*NET) Job Zones. The occupational category "Chefs and Head Cooks." has been assigned an 
O*NET Job Zone 3. which groups it among occupations for which medium preparation is needed. More specifically, 
most occupation in this zone "require training in vocational schools, related on-the-job experience, or an associate's 
degree."8 Therefore. the Petitioner's designation of the proffered position at a Level I on the LCA suggests that the 
petitioner's academic and/or experience requirements are less than training in a vocational school. related on-the-job 
experience, or an associate's degree (as generally required for an occupation designated as O*NET Job Zone 3). 
Matter of A-1- Inc 
Without more, the Petitioner has not provided sufficient evidence to establish that it normally 
requires at least a bachelor's degree in a specific specialty, or its equivalent, for the profTered 
position. First, the Petitioner's statements suggest that the contractor's position was not the same as 
the proffered position. The Petitioner did not provide the duties of the contractor, thus, it is not 
possible to determine important aspects of his job. such as the day-to-day responsibilities. 
complexity of the job duties, supervisory duties (if any). independent judgment required or the 
amount of supervision received. 
Second, the contractor received a higher wage than the salary offered to the Beneficiary. More 
specifically, the Petitioner submitted IRS Form 1099, Miscellaneous Income. showing the contractor 
was compensated $30,000 in 2014. Yet, the Petitioner stated that it will pay the Beneficiary $26.000 
per year. It therefore appears that the contractor served in a more senior position since his salary 
was significantly higher. 9 
Nevertheless, it appears that the Petitioner asserts that because the contractor was unable to 
satisfactorily perform the job duties. it now requires an individual with a specific degree. or its 
equivalent. to serve in its chef position. However. the record does not contain evidence establishing 
that the Petitioner normally requires at least a bachelor's degree in a specific specialty. or its 
equivalent. for the profTered position. Therefore, it has not satisfied the third criterion of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
D. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that 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 in a specific specialty. or 
its equivalent. 
In support of this criterion, the Petitioner provided various documents describing the duties of the 
proffered position and information regarding its business operations. The Petitioner claims that the 
proffered position requires a chef who can oversee and manage the operations, and who is also a 
skilled craftsman. 
While the Petitioner may believe that the proffered position meets this criterion of the regulations. it 
has not sufficiently demonstrated how the position as described requires the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's or higher 
degree in a specific specialty, or its equivalent. For instance. the Petitioner did not submit 
information relevant to a detailed course of study leading to a specialty degree and did not establish 
how such a curriculum is necessary to perform the tasks. While a few related courses may be 
9 The Petitioner did not provide an explanation for the variance in the wages. 
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Matter of A-1- Inc 
beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an 
established curriculum of such courses is required. 
In addition, the Petitioner claims that the Beneficiary is well qualified for the pos1t10n, and 
references his qualifications. However, the test to establish a position as a specialty occupation is 
not the education or experience of a proposed beneficiary, but whether the position itself requires at 
least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner has not 
demonstrated in the record that its protTered position is one with duties sufficiently specialized and 
complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 10 The burden is on the 
Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act. 8 U.S.C. 
§ 1361; Alatter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofA-1- Inc, ID# 16476 (AAO May 4, 2016) 
10 
We will not address the beneficiary's qualifications as a beneficiary's credentials to perform a particular job are 
relevant only when the job is found to be a specialty occupation. 
9