dismissed H-1B Case: Culinary Arts

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
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FILE: EAC 04 047 53417 Office: VERMONT SERVICE CENTER Date: OCT 2 6 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 04 047 534 17 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is an Indian restaurant. It seeks to employ the beneficiary as an executive chef and to 
classify him as a nonimmigrant 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. 3 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition on the ground that the record did not establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
As provided in 8 C.F.R. 3 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet 
one of the following criteria: 
(1) 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. 
5 214.2(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: (I) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
decision; and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record 
in its entirety before issuing its decision. 
EAC 04 047 53417 
Page 3 
The petitioner describes itself as an Indian restaurant, established in 1990, with two branch locations in 
and around New York City, over 100 employees, and gross annual income in excess of $6 million. The 
petitioner states that it proposes to hire the beneficiary as an executive chef, the duties of which are listed 
in a letter accompanying the petition as follows: supervise and coordinate activities with relation to the 
preparation and cooking of Indian foods; estimate food consumption and oversee the purchase of essential 
ingredients; inspect each shipment from suppliers and ensure that quality and quantity of ingredients meet 
established standards and specifications; manage and oversee the preparation of all dishes; provide 
training to junior chefls] and oversee that they prepare the food according to recipes; manage the 
portioning of foods that the cooks are using and give instructions to workers as to size and presentation of 
dishes and methods of garnishing; responsible for menu design, selecting and developing recipes; 
supervise other personnel engaged in preparing, cooking and serving fish, meats, sauces, vegetables, rice, 
soups, and other food and ensure that all employees are in compliance with safety and sanitary 
regulations. The beneficiary is qualified for the position, the petitioner indicates, by virtue of his eighteen 
years of work in the restaurant field. According to a report from an academic and employment credentials 
evaluation service, the beneficiary's work experience is equivalent to a bachelor's degree in culinary arts 
from a U.S. college or university. 
In response to the RFE the petitioner provided a more detailed description of the job duties and the 
estimated percentage of time required for each duty: 
20% Direct, supervise, and coordinate the activities of the restaurant's food service facility and 
estimate food consumption and portioning; give instructions to workers as to the size and 
presentation of dishes and methods of garnishing, and review the daily management of 
the food and beverage kitchen department in order to determine ongoing standards of the 
foods prepared and ensure that sufficient items are ordered as per daily requirements. 
20% Forecast operational budgets based on daily sales of foods and catering orders; and 
monitor the food and beverage costs and help write an annual plan to analyze the 
financial performance of the restaurant thus ensuring financial success of the department 
and implement appropriate procedures of cost reductions wherever required. 
12.5% Liaise with the hotel staff, including the banquet and catering department, and chefs to 
ensure coordination of catering orders and appropriate presentation of food to maintain 
specific standards. 
7.5% Develop and maintain safe culture with the department and ensure departmental 
adherence to awareness of health and safety standards. 
20%0 Oversee the preparation of catered and concession functions to avoid any discrepancies in 
the menu order placed, and provide utmost customer service and quality assurance by 
having personal interaction with the guests on an ongoing basis. 
12.5% Assist the president of the company to recruit, interview and hire chefs, stewards, and 
managerial positions as per the business operations. 
7.5% Manage high endlvolume dining room and banquet services. 
EAC 04 047 53417 
Page 4 
In his decision the director determined that the proffered position is not a specialty occupation. The 
director referred to information in the Department of Labor (D0L)'s Occupational Outlook Handbook 
(Handbook) about executive chefs indicating that a baccalaureate level of education in a specific specialty 
is not the normal minimum requirement for entry into such a position. The director also referred to the 
Handbook's information about food service managers - another occupational category which the 
petitioner asserted, in response to the RFE, is applicable to the proffered position - which likewise 
indicates that a baccalaureate degree in a specific specialty is not the normal minimum requirement for 
entry into that type of position. The record did not demonstrate that the proffered position involves senior 
management functions with high-level duties and responsibilities beyond those of a first line supervisor, 
which the director indicated is the only type of executive chef position that could qualify as a specialty 
occupation. The evidence of record did not establish that there is an industry-wide requirement of a 
bachelor's degree in a specific specialty for executive chef positions among companies similar to the 
petitioner, the director determined, or that an executive chef employed in one of the petitioner's other 
restaurants had a bachelor's degree in a specific specialty. Nor did the petitioner show that the duties and 
responsibilities of the proffered position are more specialized and complex than those of a typical 
executive chef in the industry. The director concluded that the position did not qualify as a specialty 
occupation under any of the criteria enumerated at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
On appeal counsel asserts that the duties of the executive chef position fits the DOL Handbook's 
description of a food service manager, and that a bachelor's degree in restaurant and food service 
management is required for such a position, thus making it a specialty occupation. It is the industry norm, 
according to counsel, for restaurants of similar size and operations to the petitioner to require their 
executive chefs to have a baccalaureate degree in culinary arts, restaurant management, or a related 
discipline. Such a degree, or equivalent experience, counsel maintains, enables an executive chef to 
manage diverse kitchen personnel, to apply a bachelor's level understanding of cost control, quality 
assurance, operational budgets, and culinary processes to kitchen management, and to create innovative 
dish arrangements - i.e., to perform the duties of the proffered position. Counsel contends that the 
executive chef position qualifies as a specialty occupation under all four criteria of 8 C.F.R. 3 214.2 
(h)(4)(iii)(A). 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the DOL Handbook as an authoritative source of information about the duties and 
educational requirements of particular occupations. Factors typically considered are whether the 
Handbook indicates a degree is required by the industry; 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 1 15 1, 1 165 (D.Minn. 1999) (quoting HirdBlaker Colp. v. Suva, 
764 F.Supp. 1095, 1102 (S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the 
position at issue, with the Handbook's occupational descriptions as a reference, as well as the petitioner's 
past hiring practices for the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
The duties of the proffered position, as listed in the petitioner's initial letter accompanying Form 1-129, 
reflect the duties of an executive chef, as described in the Handbook's occupational sub-category of 
executive chefs and head cooks: 
EAC 04 047 534 17 
Page 5 
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 kitchen staff. . . . Chefs tend to be 
more highly skilled and better trained than cooks. 
Handbook, 2004-05 edition, at 365. As for the educational and training requirements of executive chefs 
and head cooks, the Handbook states that: 
Executive chefs and head cooks who work in fine restaurants require many years of 
training and experience . . . . 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 two- or four-year college 
degree programs in hospitality or culinary arts . . . . Many chefs are trained on the job, 
receiving real work experience and training from chef mentors in the restaurants where 
they work. 
It is clear from the Handbook that there are many paths of education, training, and experience that can 
lead to an executive chef position, many of which do not include a four-year baccalaureate degree in a 
specific specialty. Since there is ample opportunity to enter the occupation with credentials short of a 
four-year degree in culinary arts or a related specialty, an executive chef does not meet the first alternative 
criterion of a specialty occupation at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I). 
In the more detailed job description submitted in response to the RFE, the proffered position appears to 
reflect more the duties of a food service manager. That occupation, closely linked to that of an executive 
chef, is explained as follows in the Handbook, id., at 42: 
Food service managers are responsible for the daily operations of restaurants and other 
establishments that prepare and serve meals and beverages to customers. Besides 
coordinating activities among various departments, such as kitchen, dining room, and 
banquet operations, food service managers ensure that customers are satisfied with their 
dining experience. In addition, they oversee the inventory and ordering of food, 
equipment, and supplies and arrange for the routine maintenance and upkeep of the 
restaurant, its equipment, and facilities. Managers generally are responsible for all of the 
administrative and human-resource functions of running the business, including 
recruiting new employees and monitoring employee performance and training. 
As for the educational requirements of food service managers, the Handbook states as follows: 
Most food service management companies and national or regional restaurant chains 
recruit management trainees from two- and four-year college hospitality management 
programs. Restaurant chains prefer to hire people with degrees in restaurant and 
institutional food service management, but they often hire graduates with degrees in other 
fields who have demonstrated interest and aptitude. Some restaurant and food service 
manager positions - particularly self-service and fast-food - are filled by promoting 
EAC 04 047 534 17 
Page 6 
experienced food and beverage preparation and service workers. Waiters, waitresses, 
chefs, and fast-food workers demonstrating potential for handling increased responsibility 
sometimes advance to assistant manager or management trainee jobs . . . . [Gleneral 
managers need prior restaurant experience, usually as assistant managers. 
A bachelor's degree in restaurant and food service management provides particularly 
strong preparation for a career in this occupation. A number of colleges and universities 
offer four-year programs in restaurant and hotel management or institutional food service 
management. For those not interested in pursuing a four-year degree, community and 
junior colleges, technical institutes, and other institutions offer programs in the field 
leading to an associate degree or other formal certification. 
Handbook, 2004-05 edition, at 44. What the Handbook makes clear is that, even if many food service 
managers have baccalaureate degrees in restaurant or food service management, there is ample 
opportunity to enter the occupation with credentials short of a four-year baccalaureate degree in a specific 
specialty. Accordingly, a food service manager does not meet the first alternative criterion of a specialty 
occupation set forth at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I). 
Regardless of whether the proffered position is viewed as an executive chef or a food service manager, 
therefore, it does not qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l). 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2), the 
record includes two internet job postings for executive chef positions - one by the Pfister Hotel, a 307- 
room establishment with three restaurants in downtown Milwaukee, and the other by Aramark, a 
company providing food, facility, and other management support services. The Pfister Hotel requires 
applicants to have a bachelor's degree; Aramark also requires a bachelor's degree, and states that "ideal 
candidates will possess a bachelor's degree or related culinary degree (preferably a CEC)." Neither of the 
job advertisements states that a bachelor's degree in a specific specialty is required. Moreover, two job 
postings are an insufficient number to demonstrate an industry norm with respect to the educational 
requirements of executive chefs. Thus, the job postings do not establish that a bachelor's degree 
requirement in a specific specialty is common to the petitioner's industry in parallel positions among 
similar organizations, as required for the proffered position to qualify as a specialty occupation under the 
first prong of 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2). Nor does the record establish that the position is so 
complex or unique that it can only be performed by an individual with a bachelor's degree in culinary arts 
or a related specialty, as required for the position to qualify as a specialty occupation under the second 
prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
As for the third alternative criterion of a specialty occupation, at 8 C.F.R. 214.2(h)(4)(iii)(A)(3), counsel 
asserts that the petitioner already employs an executive chef with a bachelor's degree in culinary arts at its 
Long Island restaurant. The record includes W-2 statements for an individual employed by the petitioner 
at one of its Manhattan restaurants, not at its Long Island restaurant. More importantly, there is no 
documentation showing that individual's job title or that he has a bachelor's degree in culinary arts, as 
alleged by counsel. Thus, the record does not establish that the petitioner normally requires a bachelor's 
degree in a specific specialty or its equivalent for the position of executive chef, as required for the 
position to qualify as a specialty occupation under 8 C.F.R. 214.2(h)(4)(iii)(A)(3). 
EAC 04 047 534 17 
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Finally, the evidence of record does not establish that the duties of the proffered position are so 
specialized and complex that the knowledge required to perform them is usually associated with a 
baccalaureate or higher degree, as required for the position to meet the fourth alternative criterion of a 
specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). Though the petitioner states that it has over 100 
employees at its three restaurants and gross revenues of over $6 million, the documentation of record 
does not substantiate those claims. Nor is there any evidence as to how much revenue is generated by 
each restaurant and how the employees are distributed among the restaurants. Thus, the record does not 
show the size and scale of operations of the restaurant where the petitioner will be employed. Simply 
going on record without supporting documentation does not satisfy the petitioner's burden of proof. See 
Matter of SofJici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Crafr of California, 
14 I&N Dec. 190 (Reg. Comm. 1972)). 
For the reasons discussed above, the record does not establish that the proffered position qualifies as a 
specialty occupation under any of the criteria enumerated in 8 C.F.R. 5 214.2(h)(4)(iii)(A). The record 
does not establish that the beneficiary will be coming temporarily to the United States to perform services 
in a specialty occupation, as required under section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1101 
(a>( 15)(H)(i)(b>. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.