dismissed H-1B Case: Food Service

U.S. Department of Homeland Seeurity 
20 Mass. Ave., N.W., Rm. 3000 
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 Washington, DC 20529 
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 U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 05 223 50744 Office: NEBRASKA SERVICE CENTER Date: 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101 (a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
LIN 05 223 50744 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
The petitioner operates a marketplace and cafe. It seeks to employ the beneficiary as a head cook. Accordingly, 
the petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant 
to section 10 l (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 I 101 (a)(l 5)(W)(i)(b). 
The record of proceeding before the AAO contains: 
 (1) the July 20, 2005 Form 1-129 and supporting 
documentation; (2) the director's July 29, 2005, request for evidence (RFE); (3) counsel's October 6, 2005, 
response to the director's WE; (3) the director's October 24, 2005 denial letter; and (4) the Form I-290B and 
counsel's brief and documentation in support of the appeal. The AAO reviewed the record in its entirety before 
reaching its decision. 
On October 24, 2005, the director denied the petition determining that the record did not establish that the 
proffered position is a specialty occupation. The issue before the AAO is whether the petitioner has established 
that the job it is offering to the beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 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 term "specialty occupation" is firher defined at 8 C.F.R. 8 214.2(h)(4)(ii) as: 
An occupation which 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 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. 6 214.2@)(4)(iii)(A), to qualifjr 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 particular 
LIN 05 223 50744 
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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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS 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. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. Cf: Defernor v. Meissner, 201 
F. 3d 384 (5" Cir. 2000). The critical element is not the title of the position nor 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. 
The petitioner states that it is seeking the beneficiary's services as a head cook. Evidence of the beneficiary's 
duties includes the petitioner's May 5, 2005 letter in support of the petition and counsel's October 6, 2005 
response to the director's RFE. 
At the time of filing, the petitioner stated that the beneficiary would have the following duties: 
Supervise activities of other cooks and workers preparing foods to ensure economical and 
timely food production, teaching and implementing new tools and cooking techniques, 
inspection of cooking equipment and supervising the quality of food products. Furthermore, 
he will monitor food preparation methods, portion sizes, garnishing and presentation of food 
in order to ensure an efficient and profitable food service. He will also ensure that food is 
prepared and presented in an acceptable manner to our clientele. 
He will be in charge of reviewing menus and analyzing recipes in order to determine labor 
and overhead costs. He will make recommendations to assigns [sic] prices to menu items. 
[The beneficiary] will also estimate food consumption and requisitions of foodstuffs and 
kitchen supplies. In addition, he will establish and enforces [sic] nutritional standards for 
dining establishments based on accepted industry standards. 
In an October 6, 2005 response to the director's RFE, counsel for the petitioner indicated that the petitioner 
needed a highly specialized individual with at least a bachelor's degree in restauranthotel hospitality 
management to perform the following duties: 
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Monitors compliance with health and fire regulations regarding food preparation and 
serving, and building maintenance in lodging and dining facilities; 
Plans menus and food utilization based on anticipated number of guests, nutritional value, 
palatability, popularity, and costs; 
Organizes and directs worker training programs, resolves personnel problems, hires new 
staff, and evaluates employee performance in dining and lodging facilities; 
Coordinates assignments of cooking personnel in order to ensure economical use of food 
and timely preparation; 
Estimates food, liquor, wine, and other beverage consumption in order to anticipate 
amounts to be purchased or requisitioned; 
Monitors food preparation methods, portion sizes, and garnishing and presentation of food 
in order to ensure that food is prepared and presented in an acceptable manner; 
Monitors budgets and payroll records, and reviews financial transactions in order to 
ensure that expenditures are authorized and budgeted; 
Investigates and resolves complaints regarding food quality, service, or accommodations; 
Reviews menus and analyzes recipes in order to determine labor and overhead costs, and 
assigns prices to menu items; and 
Establishes and enforces nutritional standards for dining establishments based on accepted 
industry standards. 
Counsel also submitted an August 17, 2005 opinion authored by Fred T. Faria, an associate professor at 
Johnson & Wales University, in the Center for Food & Beverage Management, Hospitality College. 
Professor Faria opined, based on the job description provided, that the proffered position of head cook is 
similar to the occupation of kitchen manager and that a head cook or kitchen manager is an occupation for 
which a bachelor's degree in hospitality/food service management or a related field would generally be 
required. Professor Faria repeats portions of the job description and notes that some of these skills are taught 
in courses and bachelor of sciences degree programs of study in food service management. Professor Faria 
further opines: 
The position of Head of Cooks or Kitchen Manager, such as the one noted, would generally 
require a Bachelor degree and a number of years of food service experience. A Bachelor 
degree in Nospitality/Food Service Management or related would generally prepare a student 
for an entry-level management position. In summary the major food service chains are now 
generally requiring a Bachelor degree for management positions, such as Head of Cooks or 
Kitchen Manager due to the nature of the specialized duties, responsibilities and complex 
knowledge required to perform the position. 
Counsel also includes a Department of Labor's Occupational Outlook Handbook (Handbook) excerpt on food 
service managers, an excerpt from the Occupational Information Network O*NET Online (O*A?EI") on food 
service managers, and an excerpt from the February 24, 2003 Interpreters Releases on a non-precedential 
AAO decision regarding an executive pastry chef. 
On October 24, 2005, the director denied the petition, determining that the petitioner had not explained how 
the duties of the proffered position were so complex that a baccalaureate degree in a specialized area would 
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be required to perform them. The director also noted that portions of the description relating to a lodging 
facility were inconsistent with the petitioner's stated business. The director found that the opinion of Fred T. 
Faria did not indicate that his opinion is based on any objective surveys, research, or statistics demonstrating 
that a baccalaureate degree is a minimum requirement for employment in the field. The director further 
determined, based upon a review of the Handbook's discussion of food service managers, that the Handbook 
did not report that a baccalaureate degree in a specialized area is a minimum requirement for employment in 
the field. The director noted counsel's reference to an unpublished AAO decision and also noted that it is not 
a precedential case and that the record of this proceeding is a separate matter. The director concluded that the 
evidence submitted is insufficient to establish that the proffered position qualified as a specialty occupation. 
On appeal, counsel for the petitioner references the Handbook's report that most food service management 
companies recruit management trainees from two and four-year college hospitality programs and asserts that 
according to the Handbook a bachelor's degree or equivalent can be required for entry into the particular 
position. Counsel also contends that the director in this matter impermissibly heightened the standard of 
proof with respect to the Board of Immigration Appeals position that where a baccalaureate degree is usually 
the minimum requirement for entry into the occupation, the occupation may be considered a profession. 
Counsel avers that the director failed to consider Professor Fred T. Faria's opinion that is based on "his 
extensive experience and personal knowledge of the fact that for the "food service operations hiring these 
graduates, a bachelor degree is a minimum requirement for that position."' Counsel withdraws the 
unintentional reference to the petitioner as a lodging facility. Counsel also references the AAO's prior 
unpublished decision and requests that it be considered as guidance in support of the appeal. Counsel claims 
the director abused his discretion when determining the proffered position is not a specialty occupation, when 
determining the unpublished AAO decision is not binding, and by rejecting the expert opinion offered in 
support of the industry standard. 
Counsel's assertions are not persuasive. Preliminarily, the AAO emphasizes that while 8 C.F.R. 5 103.3(c) 
provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. The director correctly found that the unpublished AAO 
decision in another matter is not binding in the adjudication of this matter. In addition, the AAO reiterates 
that in the absence of all of the corroborating evidence contained in the record of proceedings of other matters 
including the description of the job duties, the AAO cannot find that the proffered position in this matter is 
parallel to the position of an executive pastry chef. Each nonimmigrant petition is a separate proceeding with 
a separate record. See 8 C.F.R. Ij 103.8(d). When making a determination of statutory eligibility CIS is 
limited to the information contained in the record of proceeding. See 8 C.F.R. Ij 103.2(b)(16)(ii). Moreover, 
counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in 
the unpublished decision. 
The AAO now turns to a review of the duties of the proffered position to determine whether the position can 
be considered a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 
 214.2(h)(4)(iii)(A)(I), whether a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position. The AAO 
routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for its information 
about the duties and educational requirements of particular occupations. The Handbook states the following 
LIN 05 223 50744 
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with regard to the employment of food service managers, the position that mostly closely resembles the duties 
of the proffered position: 
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. 
The Handbook continues: 
Food service managers ensure that diners are served properly and in a timely manner. They 
investigate and resolve customers' complaints about food quality or service. They monitor 
orders in the kitchen to determine where backups may occur, and they work with the chef to 
remedy any delays in service. 
Regarding the educational requirements of food service managers, the Handbook states: 
Experience in the food services industry, whether as a full-time waiter or waitress or as a 
part-time seasonal counter attendant, is essential training for a food services manager. Many 
food service management companies and national or regional restaurant chains recruit 
management trainees from 2- and 4-year college hospitality management programs which 
require internships and real-life experience to graduate. Some 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 experience, interest and 
aptitude. Many restaurant and food service manager positions - particularly self-service and 
fast-food - are filled by promoting experienced food and beverage preparation and service 
workers. 
Although the Handbook reports that a bachelor's degree in restaurant and food service management provides 
particularly strong preparation for a career in this occupation, the Handbook also recognizes that community 
and junior colleges, technical institutes, and other institutions offer programs in the field leading to an 
associate's degree or other formal certification. The Handbook notes that both two and four-year programs 
provide similar instructional courses and emphasizes that most employers have rigorous in-house training 
programs for management employees. Thus, the AAO concurs with the director's determination regarding the 
Handbook's report that food service managers do not require a bachelor's degree in a specific specialty. 
Instead, the Handbook recognizes several avenues leading to employment as a food service manager. The 
AAO acknowledges counsel's statement that a bachelor's degree or equivalent can be required for entry into 
the particular position; however, this statement does not establish that a bachelor's degree is normally a 
requirement for entry into this position. Rather it simply recognizes a bachelor's degree as one of several 
paths leading to employment as a food service manager. 
LIN 05 223 50744 
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The AAO also acknowledges counsel's reference to the O*NET; however, the AAO does not consider the 
O*NET to be a persuasive source of information as to whether a job requires the attainment of a baccalaureate 
or higher degree (or its equivalent) in a specific specialty. The O*NET provides only general information 
regarding the tasks and work activities associated with a particular occupation, as well as the education, 
training, and experience required to perform the duties of that occupation. 
The AAO has also considered the opinion offered by Professor Fred T. Faria in relation to the educational 
requirements of the occupation of a food service manager. Professor Faria states that it is his opinion that "[a] 
Bachelor degree in HospitalitylFood Service Management or related [field] would generally prepare a student 
for an entry-level management position," and "the major food service chains are now generally requiring a 
Bachelor degree for management positions, such as Head of Cooks or Kitchen Manager, due to the nature of 
the specialized duties, responsibilities and complex knowledge required to perform the position." The AAO 
does not disagree that a four-year program in hospitality or food service management would prepare an 
individual for an entry-level position; however, the issue is whether such a degree is normally required. The 
Handbook indicates it is not. Moreover, the professor couches his opinion in general terms and does not 
indicate definitely that the industry requires a four-year degree as a minimum for entry into the occupation of 
a head cook or kitchen manager. Further, the professor does not explain how the duties of the proffered 
position are so complex that prospective employees would be required to hold a baccalaureate degree or its 
equivalent for entry into the position. 
In addition, as the director observed, the professor does not support his opinion with a factual foundation. 
The AAO acknowledges the professor's ten-year experience as a Department Chair of the Center for Food 
Service Management at the Hospitality College of Johnson & Wales University, but the professor has failed 
to provide surveys, research reports, or statistics to objectively quantifL his opinion. His statements suggest 
that his conclusions are based on general anecdotal information. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). The Handbook, which offers an overview of national hiring practices, 
draws on personal interviews with individuals employed in the occupation, &om websites, published training 
materials as well as interviews with the organizations granting degrees, certification, or licenses in the field, 
to reach its conclusions regarding the nation's employment practices. Professor Faria's opinion is insufficient 
to overcome the Handbook's report that not all employment in the food management field requires a degreed 
individual. The AAO may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. However, where an opinion is not in accord with other information or is in any way questionable, 
the AAO is not required to accept or may give less weight to that evidence. Matter ofCaron International, 19 
I&N Dec. 791 (Comrn. 1988). 
The petitioner has not established that a baccalaureate or higher degree or its equivalent in a specific specialty 
is the normal minimum requirement for entry into the proffered position. The petitioner has failed to establish 
the criterion at 8 C.F.R. @ 214.2(h)(4)(iii)(A)(I). 
The petitioner has not offered substantive evidence to establish that a specific degree requirement is common 
to the industry in parallel positions among similar organizations as required by the first prong of the criterion 
at 8 C.F.R. g 214.2@)(4)(iii)(A)(2). The only evidence submitted in this regard is the opinion of Professor 
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Fred T. Faria. As noted above, the professor provides general conclusions regarding the position of a head 
cook or kitchen manager. Moreover, the record does not indicate that the professor reviewed the petitioner's 
operations, visited the petitioner's work site, or interviewed the petitioner. While the AAO acknowledges that 
in some circumstances the position of a food service manager may require a bachelor's degree in hospitality 
management or a related field, the professor does not give sufficient details about the complexity of the duties 
or otherwise explain how the duties of the instant position require a four-year degree in a specific discipline to 
perform. Again, there is an inadequate factual foundation established to support the opinion. 
The petitioner has also failed to establish the second prong of the second criterion. The record does not 
contain evidence that would show the proffered position is so complex or unique that only an individual with 
a degree can perform the position. The description of the duties of the proffered position is that of a food 
service manager, an occupation that does not require a bachelor's degree in a specific specialty. The AAO is 
not persuaded that the nature of the specific duties of the proposed position is more unique and complex than 
that of a typical head cook or that the knowledge required to perform the duties is usually associated with the 
attainment of a bachelor's or higher degree in the hospitality field. The opinion of Professor Faria is not 
sufficiently specific to establish either prong of the referenced criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) and 
the record does not contain other evidence to establish the criterion at 8 C.F.R. rj 214.2(h)(4)(iii)(A)(2). 
Nor is there adequate evidence in the record to establish the third criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A), 
that the petitioner normally requires a degree or its equivalent for the position. The record does not contain 
evidence that the petitioner previously employed only degreed individuals in the position of head cook. 
Further, the AAO notes that while a petitioner may believe that a proffered position requires a degree, that 
opinion cannot establish the position as a specialty occupation. Were CIS limited solely to reviewing a 
petitioner's 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 employer required the individual to have a 
baccalaureate or higher degree. Accordingly, the petitioner has failed to establish the referenced criterion at 
8 C.F.R. $214.2(h)(4)(iii)(A)(3) based on its normal hiring practices. 
The duties of the proffered position do not exceed the scope of those performed by a food service manager, an 
occupation that does not require a specific baccalaureate degree. There is no evidence in the record sufficient 
to satisfy the regulation at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4); namely, that the petitioner establish 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. The Handbook reveals that the 
occupation of a food service manager is an occupation that does not require a specific baccalaureate degree as 
a minimum for entry into the occupation. The petitioner has provided a general description of the duties 
associated with the proffered position but has not explained how or offered documentary evidence to 
substantiate that the nature of the duties is specialized and complex, beyond the routine duties of a food and 
beverage manager. Again, Professor Faria's opinion, based on the job description provided and his experience 
in teaching in the hospitality field, for the same reasons noted above is insufficient to establish that the 
proffered position is a specialty occupation for which a bachelor's degree in hospitality/food service 
management is required. 
The petitioner has not established that the proffered position is a specialty occupation based on the criterion 
set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
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The AAO disagrees with counsel's claim that the director heightened the standard of proof in this matter. The 
AAO emphasizes that the petitioner has failed to establish that the occupation of head cook as described in 
this matter is a specialty occupation based on normal educational requirements for the position, the industry 
standard as it relates to educational requirements for a parallel position, the nature of the specific duties of the 
position, or the past hiring practices of the petitioner for the proffered position. The petitioner has not 
established that a baccalaureate degree is usually the minimum requirement for entry into the proffered 
position. Neither counsel nor the petitioner have established that the proffered position's duties require the 
services of anyone other than a non-degreed employee to perform routine oversight of the food and kitchen 
portion of the petitioner's operation. 
Beyond the decision of the director, the petitioner has not established that the beneficiary is qualified to 
perform the duties of a specialty occupation. The petitioner submitted an August 3 1, 2004 evaluation of the 
beneficiary's resume and letters verifying the beneficiary's prior employment. The evaluator from Foundation 
for International Services, indicates that the beneficiary's progressive employment experience is the 
equivalent of a bachelor's degree in hospitality management from a regionally accredited college or university 
in the United States. The AAO cannot agree. A petitioner may not rely on a credentials evaluation service to 
evaluate a beneficiary's work experience. A credentials evaluation service may evaluate only a beneficiary's 
educational credentials. See 8 C.F.R. Ej 214.2@)(4)(iii)@)(3). To establish an academic equivalency for a 
beneficiary's work experience, a petitioner must submit an evaluation of such experience from an official who 
has the authority to grant college-level credit for training and/or experience in the specialty at an accredited 
college or university that has a program for granting such credit. See 8 C.F.R. 214.2(h)(4)(iii)(D)(I). The 
petitioner has not provided the necessary evidence to establish that the beneficiary is qualified to perform the 
services of a specialty occupation. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
Therefore, for the reasons related in the preceding discussion, the petitioner has failed to establish that the 
proffered position is a specialty occupation or that the beneficiary would be eligible to perform the duties of a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. The burden of proof in these proceedings rests solely with 
the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.