dismissed H-1B Case: Culinary Arts

MATTER OF 2- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 16, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant, seeks to temporarily employ the Beneficiary as a "chef'' under the H-lB 
nonimmigrant classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition and 
affirmed the denial decision on motion. The matter is now before us on appeal. Upon de novo 
review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the proffered pos1t1on qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
For an H -1 B petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
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) states, in pertinent part, the following: 
Matter oj2- Inc 
Specialty occupation means an occupation which [ ( 1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed 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 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)( 4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)( 4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
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Matter of2- Inc 
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 proffered position. See 
Royal Siam Corp. v. Cherto.ff, 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
The Petitioner described the position in its support letter dated August 9, 2013, as follows: 
Direct the preparation of Indian Specialty dishes including Tandoori, Curries 
and Desserts. Order supplies, and keep records and accounts. Hire, train, discipline 
and manage kitchen personnel; estimate food consumption and requisition or 
purchase food; establish presentation technique and quality standards; plan and price 
menus; ensure proper equipment operation/maintenance; and ensure proper safety and 
sanitation in the kitchen. 
The Petitioner also stated that it requires "at least a bachelor's degree or its equivalent in Hotel 
Management Catering Technology or its closely related field." 
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Matter of2-Inc 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirementfor entry into the particular position 
We will first discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
USCIS recognizes the U.S. Department of Labor (DOL)'s Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. 1 We reviewed the section of the Handbook covering "Chefs and 
Head Cooks," including the section entitled "How to Become a Chef or Head Cook," which states 
the following: 
Most chefs and head cooks learn their skills through work experience. Others 
receive training at a community college, technical school, culinary arts school, or 4-
year college. A small number learn through apprenticeship programs or in the Armed 
Forces. 
Education 
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. Candidates are typically required to have a high school 
diploma or equivalent to enter these programs. 
Students in culinary programs spend most of their time in kitchens, practicing 
their cooking skills. Programs cover all aspects of kitchen work, including menu 
planning, food sanitation procedures, and purchasing and inventory methods. Most 
training programs also require students to gain experience in a commercial kitchen 
through an internship or apprenticeship program. 
Work Experience in a Related Occupation 
Most chefs and head cooks start working in other positions, such as line 
cooks, learning cooking skills from the chefs they work for. Many spend years 
working in kitchens before gaining enough experience to be promoted to chef or head 
cook positions. 
1 All references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.b1s.gov/ooh/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
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Matter of2- Inc 
Training 
Some chefs and head cooks train on the job, where they learn the same skills 
as in a formal education program. Some train in mentorship programs, where they 
work under the direction of an experienced chef. Executive chefs, head cooks, and 
sous chefs who work in upscale restaurants often have many years of training and 
expenence. 
Some chefs and head cooks learn through apprenticeship programs sponsored 
by professional culinary institutes, industry associations, or trade unions in 
coordination with the U.S. Department of Labor. Apprenticeship programs generally 
last 2 years and combine instructions and on-the-job training. Apprentices must 
complete at least 1,000 hours of both instructions and paid on-the-job training. 
Courses typically cover food sanitation and safety, basic knife skills, and equipment 
operation. Apprentices spend the rest of their training learning practical skills in a 
commercial kitchen under a chefs supervision. 
The American Culinary Federation accredits more than 200 academic training 
programs at postsecondary schools and sponsors apprenticeships around the country. 
The basic qualifications required for entering an apprenticeship program are as 
follows: 
• Minimum age of 17 
• High school education or equivalent 
• Passing grade in substance abuse screening 
Some chefs and head cooks receive formal training in the Armed Forces or from 
individual hotel or restaurant chains. 
Licenses, Certifications, and Registrations 
Although not required, certification can show competence and lead to 
advancement and higher pay. The American Culinary Federation certifies personal 
chefs, in addition to various levels of chefs, such as certified sous chefs or certified 
executive chefs. Certification standards are based primarily on work-related 
experience and formal training. Minimum work experience for certification can range 
from 6 months to 5 years, depending on the level of certification. 
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/chefs-and-head­
cooks.htm#tab-4 (last visited Feb. 12, 2016). 
The Handbook specifically states that most chefs and head cooks gain their skills through work 
experience and that post-secondary education is not required. Moreover, the Handbook further 
reports that most education or apprentice programs for chefs and head cooks last only two years. 
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Matter oj2- Inc 
Therefore, the Handbook's recogmtwn that work experience, or a two year apprenticeship or 
education program, is sufficient for entry into the occupation strongly suggests that a bachelor's 
degree in a specific specialty is not a standard, minimum entry requirement for this 
occupation. Accordingly, as the Handbook indicates that working as a chef or head cook does not 
normally require at least a bachelor's degree in a specific specialty or its equivalent for entry into the 
occupation, it does not support the particular position proffered here as being a specialty occupation. 
In addition, we note that the Occupational Information Network (O*NET) Summary Reports, 
referenced by the Petitioner, are insufficient to establish that the proffered position qualifies as a 
specialty occupation normally requiring at least a bachelor's degree in a specific specialty, or its 
equivalent. On February 12, 2016, we accessed the pertinent section of the O*NET Internet site 
relevant to 35-1011.00 - Chefs and Head Cooks. Contrary to the assertions of the Petitioner, 
O*NET does not state a requirement for a bachelor's degree for this occupation. Rather, it assigns 
this occupation a Job Zone "Three" rating, which groups it among occupations for which "most ... 
require training in vocational schools, related on-the-job experience, or an associate's degree." 
O*NET OnLine Summary Report for "35-1011.00 Chefs and Head Cooks," 
http://www.onetonline.org/link/summary/35-1011.00 (last visited Feb. 12, 2016); O*NET OnLine 
Help Job Zones, http://www.onetonline.org/help/online/zones (last visited Feb. 12, 
2016). Therefore, O*NET is not probative of the proffered position being a specialty occupation. 
Nor are we persuaded by the Petitioner's reference to DOL's Dictionary of Occupational Titles 
(DOT). The Petitioner claims that the DOT lists chef occupations as Specific Vocational 
Preparation (SVP) of six. The DOT does not support the assertion that assignment of an SVP rating 
of six is indicative of a specialty occupation. This conclusion is apparent upon reading Section II of 
the DOT's Appendix C, Components of the Definition Trailer, which addresses the SVP rating 
system.2 The section reads: 
II. SPECIFIC VOCATIONAL PREPARATION (SVP) 
Specific Vocational Preparation is defined as the amount of lapsed time required by a 
typical worker to learn the techniques, acquire the information, and develop the 
facility needed for average performance in a specific job-worker situation. 
This training may be acquired in a school, work, military, institutional, or vocational 
environment. It does not include the orientation time required of a fully qualified 
worker to become accustomed to the special conditions of any new job. Specific 
vocational training includes: vocational education, apprenticeship training, in-plant 
training, on-the-job training, and essential experience in other jobs. 
2 The Appendix can be found at the following Internet site: http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT 
APPC.HTM. 
Matter of2- Inc 
Specific vocational training includes training giVen m any of the following 
circumstances: 
a. Vocational education (high school; commercial or shop training; technical school; 
art school; and that part of college training which is organized around a specific 
vocational objective); 
b. Apprenticeship training (for apprenticeable jobs only); 
c. In-plant training (organized classroom study provided by an employer); 
d. On-the-job training (serving as learner or trainee on the job under the instruction of 
a qualified worker); 
e. Essential experience in other jobs (serving in less responsible jobs which lead to 
the higher grade job or serving in other jobs which qualify). 
The following is an explanation of the various levels of specific vocational 
preparation: 
Level Time 
1 
2 
3 
4 
5 
6 
7 
8 
9 
Short demonstration only 
Anything beyond short demonstration up to and including 1 month 
Over 1 month up to and including 3 months 
Over 3 months up to and including 6 months 
Over 6 months up to and including 1 year 
Over 1 year up to and including 2 years 
Over 2 years up to and including 4 years 
Over 4 years up to and including 1 0 years 
Over 1 0 years 
Note: The levels of this scale are mutually exclusive and do not overlap. 
Thus, an SVP rating of six does not indicate that at least a four-year bachelor's degree is required, or 
more importantly, that such a degree must be in a specific specialty closely related to the occupation 
to which this rating is assigned. Therefore, the DOT information is not probative of the proffered 
position qualifying as a specialty occupation. 
The Petitioner provides a copy of an unpublished AAO decision in which we found a chef position 
to be a specialty occupation. We note, however, that the facts in that case are not analogous to the 
present petition as in that case we specifically stated that the position was not a typical chef position 
and the petitioner was much larger and had more restaurant locations than the Petitioner here. 
Nevertheless, even if it had been determined that the facts in those cases were analogous to those in 
Matter of 2- Inc 
this proceeding, that prior decision would not be binding. While 8 e.F.R. § 103.3(c) provides that 
our precedent decisions are binding on all users employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which the Handbook, or other authoritative source, indicates that normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. The record lacks sufficient evidence to support a finding that the particular position 
proffered here, an entry-level chef position (as indicated on the labor condition application (LeA)), 
would normally have such a minimum, specialty degree requirement or its equivalent. The duties 
and requirements of the position as described in the record of proceeding do not indicate that this 
particular position proffered by the Petitioner is one for which a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the 
Petitioner has not satisfied the criterion at 8 e.F .R. § 214.2(h)( 4 )(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 e.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
users 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 
and recruit only de greed 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 independent, authoritative source) reports a standard industry-wide 
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. 
There are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. 
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Matter of2-Inc 
The Petitioner submitted copies of job advertisements in support of the assertion that the claimed 
degree requirement is common to the Petitioner's industry in parallel positions among similar 
organizations. However, upon review of the documents, we find that the Petitioner's reliance on the 
job announcements is misplaced. 
In the Form I-129, the Petitioner stated that it is an Indian restaurant with an "[e]stimated 15" 
employees. The Petitioner also reported its gross annual income as an estimated $1.5 million. The 
Petitioner designated its business operations under the North American Industry Classification 
System (NAICS) code 722110.3 This NAICS code is designated for "Full Service Restaurants." 
The U.S. Department of Commerce, Census Bureau website describes this NAICS code as follows: 
This industry comprises establishments primarily engaged in providing food 
services to patrons who order and are served while seated (i.e, waiter/waitress 
services) and pay after eating. These establishments may provide this type of food 
services to patrons in combination with selling alcoholic beverages, providing carry 
out services, or presenting live nontheatrical entertainment. 
See U.S. Dep't of Commerce, U.S. Census Bureau, 2007 NAICS Definition, 722110 - Full-Service 
Restaurants, http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited Feb. 12, 2016). 
For the Petitioner to establish that an organization in its industry is also similar under this criterion of 
the regulations, it must demonstrate that the Petitioner and the organization share the same general 
characteristics. Without such information, evidence submitted by a petitioner is generally outside 
the scope of consideration for this criterion, which encompasses only organizations that are similar 
to the Petitioner. Without more, it cannot be determined that the job postings are from organizations 
similar to the Petitioner.4 
When determining whether the Petitioner and each organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. In re Sojjici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter o.fTreasure Craft o.fCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
3 According to the U.S. Census Bureau, the North American Industry Classification System (NAICS) is used to classify 
business establishments according to type of economic activity and, each establishment is classified to an industry 
according to the primary business activity taking place there. See http://www.census.gov/eos/www/naics/ (last visited 
Feb. 12, 2016). The 2012 NAICS code for "Full-Service Restaurants" is 722511. 
4 It does not appear that any of the advertisements were placed by restaurants similar in size and revenue to the 
Petitioner. 
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(b)(6)
Matter oj2- Inc 
Further, some postings do not indicate that at least a bachelor's degree in a directly related specific 
specialty (or its equivalent) is required for the advertised positions and that those positions are 
parallel to the proffered position. 5 For instance, the posting from the states that it 
requires a culinary school graduate for the position, but as discussed in the Handbook, some culinary 
schools offer two-year degree programs. In addition, that posting is for a chef with at least two years 
of experience as an executive chef, or the equivalent; however, the proffered position is an entry­
level chef position. Similarly, the posting from states a requirement for an 
associate's or two-year college degree, and at least two years of experience. Thus, the 
advertisements do not indicate that a bachelor's degree in a specific specialty (or its equivalent) that 
is directly related to the duties of the position is required. 6 As discussed, the advertisements also do 
not appear to be for parallel positions. 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary.7 That is, not every deficit of every job posting has been addressed. 
Based upon a complete review of the record, we conclude that the Petitioner has not established that 
a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to 
the Petitioner's industry in positions that are (1) in the Petitioner's industry, (2) parallel to the 
proffered position, and also (3) located in organizations that are similar to the Petitioner. For the 
reasons discussed above, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
5 As discussed, the degree requirement set by the statutory and regulatory framework ofthe H-18 program is not just a 
bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In addition, since there must be a close 
correlation between the required "body of highly specialized knowledge" and the position, a minimum entry requirement 
of a degree in disparate fields would not meet the statutory requirement that the degree be "in the specific specialty," 
unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular 
position such that the required "body of highly specialized knowledge" is essentially an amalgamation of these different 
specialties. Section 214(i)(l)(B) of the Act (emphasis added). 
6 The Petitioner does not demonstrate what inferences, if any, can be drawn from these few advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See 
generally Earl Babbie, The Practice of Social Research 186-228 (7th ed. 1995). As such, even if the job announcements 
supported the finding that the position required a bachelor's or higher degree in a specific specialty, or its equivalent (for 
organizations in the same industry that are similar to the Petitioner), it cannot be found that such a limited number of 
postings that appear to have been consciously selected could credibly refute the findings of the Handbook published by 
the Bureau of Labor Statistics that such a position does not normally require at least a baccalaureate degree in a specific 
specialty, or its equivalent, for entry into the occupation in the United States. 
7 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices ofthese employers. 
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Matter of2- Inc 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
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. 
The evidence of record does not establish that this position is significantly different from other 
positions in the occupational category such that it refutes the Handbook's information that a 
bachelor's degree in a specific specialty or its equivalent is not required for the proffered position. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. 
The evidence of record does not develop relative complexity or uniqueness as an aspect of the 
position. The Petitioner did not submit evidence to demonstrate that the proffered position entails 
work that is more complex or unique that it can only be performed by someone with a bachelor's 
degree in a specific specialty. Further, the LCA submitted by the Petitioner indicates a wage level at 
a Level I (entry) wage, which is the lowest of four assignable wage levels.8 Without further 
evidence, the record of proceeding does not indicate that the proffered position is complex or unique 
as such a position falling under this occupational category would likely be classified at a higher­
level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
8 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that require 
limited, if any, exercise of judgment. The tasks provide experience and familiarization with the 
employer's methods, practices, and programs. The employees may perform higher level work for 
training and developmental purposes. These employees work under close supervision and receive 
specific instructions on required tasks and results expected. Their work is closely monitored and 
reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an 
internship are indicators that a Level I wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Re 
vised _11_2009.pdf. 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
Beneficiary is only required to have a basic understanding of the occupation and carries expectations that the Beneficiary 
perform routine tasks that require limited, if any, exercise of judgment; that he would be closely supervised; that his 
work would be closely monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. DOL guidance indicates that a Level I designation should be considered for positions in 
which the employee will serve as a research fellow, worker in training, or an intern. 
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Matter of2- Inc 
significantly higher prevailing wage.9 For example, a Level IV (fully competent) pos1t10n is 
designated by DOL for employees who "use advanced skills and diversified knowledge to solve 
unusual and complex problems." 10 The evidence of record does not establish that this position is 
significantly different from other positions in the occupational category such that it refutes the 
Handbook's information that a bachelor's degree in a specific specialty or its equivalent is not 
required for the proffered position. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. 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 duties it may believe are so complex and 
unique. While a few related courses may be beneficial, or even required, in performing certain 
duties of the position, the Petitioner has not demonstrated how an established curriculum of such 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is 
required to perform the duties of the proffered position. The description of the duties does not 
specifically identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. The record lacks sufficiently detailed information to distinguish the 
proffered position as more complex or unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner did not establish that its particular position is so complex or unique that it can only be 
performed by an individual with at least a bachelor's degree in a specific specialty, or its equivalent. 
Therefore, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
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 
this end, we usually review a petitioner's past recruiting and hiring practices, as well as information 
9 The issue here is that the Petitioner's designation of this position as a Levell, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 qualifies 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 consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
1° For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.flcdatacenter.com/download!NPWHC _Guidance_ Revised _II_ 2009.pdf 
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Matter of2- Inc 
regarding employees who previously held the position, and any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must also establish that a 
petitioner's imposition of a degree requirement is not merely 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 users limited solely to 
reviewing a 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 
artificially 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. Meissner, 201 F.3d at 388. In other words, if a petitioner's stated degree requirement is 
only designed to artificially meet the standards for an H-1B visa and/or to underemploy an 
individual in a position for which he or she is overqualified and if the proffered position does not in 
fact require such a specialty degree or its equivalent, to perform its duties, the occupation would not 
meet the statutory or regulatory definition of a specialty occupation. See section 214(i)(l) of the 
Act; 8 e.F .R. § 214.2(h)( 4 )(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. users must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of the position actually requires the theoretical and practical application of a 
body of highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the 
specific specialty as the minimum for entry into the occupation as required by the Act. 
The Petitioner claims that this is not the first time it has hired a chef, and the record contains 
information regarding the educational credentials of another claimed employee. The Petitioner has 
also included a copy of an advertisement it posted for a chef stating a requirement for a bachelor's 
degree or its equivalent in hotel management or a related field. These claims, however, are not 
sufficient to satisfy this criterion. 
First, the degree requirements for the Petitioner's two chef positions do not appear to be the same, 
which raises questions as to whether the duties of that position in fact mirror those of the position 
proffered here. The advertisement the Petitioner submitted indicates that at least a bachelor's degree 
or its equivalent in hotel management or a related field was required previously, whereas the 
proffered position requires at least a bachelor's degree in hotel management catering technology or a 
closely related field. Further, hiring only one degreed employee previously in the position of chef is 
not sufficient evidence of a past history of employing only persons with at least a bachelor's degree 
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Matter of2- Inc 
in a specific specialty or the equivalent. Such evidence does not establish a pattern that the 
Petitioner requires, as opposed to simply prefers to hire, someone with at least a bachelor's degree in 
a specific specialty or equivalent to fill the proffered position. 
The record of proceeding does not demonstrate that the Petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position. Accordingly, the 
Petitioner has not established the referenced criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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 in a specific specialty, or its equivalent 
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. 
Upon review of the record of the proceeding, we find that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly developed by the Petitioner as an aspect of the proffered position. 
That is, the proposed duties have not been described with sufficient specificity to establish that they 
are more specialized and complex than positions that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. Therefore, the evidence of record does 
not establish that the duties which collectively constitute this position are significantly different from 
those of other chef positions such that it refutes the Handbook's information to the effect that there is 
a spectrum of preferred experience and/or degrees acceptable for chef positions, including requiring 
a minimum of work experience without any education; or a two year degree. In other words, the 
record lacks sufficiently detailed information to distinguish the proffered position as unique from or 
more complex than other closely related positions that can be performed by persons without at least 
a bachelor's degree in a specific specialty or its equivalent. 
Upon review of the totality of the record, the Petitioner has not established that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. For these reasons, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
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Matter of2- Inc 
III. CONCLUSION AND ORDER 
As set forth above, we find the evidence of record insufficient to establish that the proffered position 
qualifies as a specialty occupation. Accordingly, the appeal will be dismissed and the petition 
denied. 
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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 "r&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of2-Inc, ID# 15726 (AAO Feb. 16, 2016) 
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