dismissed EB-1A Case: Culinary Arts

laentifying data delefea to 
prevent elearly unwarranted 
invgd810~ of ~~na pd-u 
PUBLIC COW 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
? 
U. S. Citizenship 
and Immigration 
Services 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. 
Robert P. ~ieman; Chief 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of extraordinary ability. The 
director determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability. 
On appeal, counsel states: 
 "[The petitioner] meets at least 3 out of 10 of criteria [sic] listed in 8 C.F.R. 
5 204.5(h)(3)." 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international acclaim 
and whose achievements have been recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit prospectively the 
United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 
5 204.5(h)(2). The specific requirements for supporting documents to establish that an alien has sustained 
national or international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. fj 204.5(11)(3). The relevant criteria will be addressed below. It should be reiterated, however, that 
the petitioner must show that she has earned sustained national or international acclaim at the very top level. 
This petition, filed on September 27, 2004, seeks to classify the petitioner as an alien with extraordinary 
ability as a specialty cook preparing potosinas style Mexican dishes. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which 
must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. The petitioner has submitted evidence pertaining to the following criteria. 
'= Page 3 
Evidence that the 'alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
In order to establish that she performed a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish the nature of her role yithin the entire organization or 
establishment and the reputation of the organization or establishment. 
The petitioner submitted thirteen letters in support of the petition that mentiob her work a- now 
defunct restaurant once located in San Luis Potosi, Mexico. The director's ddcision noted that many of these 
letters were deficient in that they were "not backed up by any resumes sljowing the qualification of the 
reference letters' writers." For exam le the letters of support from 
an were written by individuals ho claim no experience in the 
food service industry. We further note that nine out of the thirteen letters of support did not include an 
address or telephone number through which theirs authors may 
 none of the letters of 
support identify the specific dates of the petitioner's employment a 
he only individual whose letter was accompanied by a resumk (which included his address), 
"been a chef for the past fifteen years." He further states: 
I have known [the petitioner] for about six years and I have much admi@tion for cooking abilities, 
especially about the way she prepares Potosinas Style Mexican dishes. 
[The petitioner] has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation. [Th emely well known 
restaurant in Mexico, famous for thei largely due to [the 
petitioner's] cooking abilities. shortly after [the etitioner] relocated to the 
U.S. because they could not 
 Style Specialty Cook li d e [the petitioner]. 
C 
nee peat 
the assertions o 
 None of their letters state that they workdd at La Cigarra, nor do they 
explain how they became aware of the nature of the petitioner's role at that restqurant. 
Ln response to the director's request for evidence, 
individual identifying himself as the former manager o 
 and a local live 
stock owner and butcher from San Luis Potosi, 
as an "excellent" and "extraordinary" cook and assert that had a distinguished reputation, but their 
letters are not adequate to show that the reputation of the petitioner or the reptaurant extended beyond the 
boundaries of San Luis Potosi. 
The director's notice of denial and request for evidence both stated that th@ record lacked independent, 
objective evidence demonstrating the distinguished reputation of We agree with the director's 
finding. For example, the petitioner has submitted no published restaurant revqews showing that La Cigarra 
Page 4 
had earned a distinguished reputation at the national or international level. Aside from some hot0 ra hs in 
which it is impossible to ascertain the location where they were taken (no signage identifying-he 
record includes no contemporaneous evidence establishing the petitioner's erplployment at the restaurant. In 
fact, aside from these photographs, all of the evidence submitted by the Oetitioner in this case has been 
prepared proximate to the petition's September 27, 2004 filing date abd long after the petitioner's 
employment a-ad terminated. 
C 
In response to the director's request for evidence, counsel stated: closed down shortly after [the 
petitioner] left to the United States. It is difficult to provide objective propf-of a restaurant that has not 
existed for over 10 years and was located in San Luis Potosi, Mexico." Pursuant to Section 291 of the Act, 
however, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. The 
letters of support submitted by the petitioner*are not first-hand evidence o distinguished 
reputation. The benefit sought in the present matter is not the type for wl-iic ocumental~on is typically 
unavailable and the statute specifically requires "extensive documentation" to ebtablish eligibility. See 'section 
203(b)(l)(A)(i) of the Act. Further, the regulations governing the present immigant visa determination have no 
requirement mandating that Citizenship and Immigration Services (CIS) speci$cally accept the credibility of 
personal testimony, even if not corroborated by objective evidence. 
The statements fiom counsel and multiple witnesses tham closed down more than ten years ago 
raise an important point. According to Part 3 of the Form 1-140, Immigrant Petition for Alien Worker, the 
petitioner's "date of arrival" in the United States was August 24, 1994. 
 There is no evidence of the 
petitioner's employment as a cook subsequent to that date. The statute and regulations, however, clearly 
require the petitioner's acclaim to be "sustained." Given the length of time be*een the petitioner's arrival in 
the United States and the petition's filing date (more than ten years), it is rea$onable to expect her to have 
earned national acclaim in the United States during that time. The petitioner has had am le time to establish a 
reputation as a specialty cook in this country. Even if we were to accept tbat 
 had earned a 
distinguished reputation before its closure (which we do not), there is no evidence showing that, since her 
arrival in the United States, the petitioner has sustained her prior acclaim a$ a cook in Mexico through 
employment as a cook for a distinguished establishment here in the United Stateq. 
We find the petitioner has not established that she performed in a leading or critical role for a distinguished 
organization, or that her involvement has earned her sustained national or international acclaim. 
1 
Evidence that the alien has commanded a high salary or other signi$cant& high remuneration for 
services, in relation to others in thejeld 
The petitioner submitted a September 9,2004 letter of support from 
 stating: "As a 
potosinas Style Specialty cook, [the petitioner] commands a high 
earning a monthly salary of $4000 pesos. Based on my expert opinion and hay~ng worked in the culinary 
industry for so many years, the average salary for specialty cooks is around $3001400 per week." 
The petitioner also submitted a September 9, 2004 letter from 
 stating: "[The petitioner] 
commanded well over 48,000 pesos a year in earnings. Based on 
 n and having worked in the 
culinary field for many years, I can say that [the petitioner] commands a high $slay in relation to others in the 
field." 
In rgsponse to the director's request for evidence, the petitioner submitted An August 11, 2005 letter from 
- stating: "The salary that [the petitioner] earned is ve? high compared to what other 
similar cooks made in Mexico. It is impossible to compare her salary to th$ salary of cooks in the United 
tates because there aren't other cooks in the United States similar to1 her." 
 Interestingly, 
$. 
etter does not cite any specific salary amounts upon which her ccpnclusion is based. 
 m 
In fact, none of the preceding individuals cite specific data for specialty coqk salaries in Mexico from the 
early 1990's to support their claims regarding the petitioner's high salarqi.. The petitioner submits no 
corroborative evidence in the form of reliable statistical salary information fbm a recognizable or credible 
organization such as the Economic Research Institute or other statistical gathedine organization that examines 
payroll records, or income tax forms) showing that the petitioner actually earnled the compensation specified 
in their September 9, 2004 letters. Nor has it been adequately explained how the preceding witnesses are 
aware of the petitioner's compensation from more than a decade ago. Finally, and most inlportantly, the 
record includes no evidence of the petitioner's earnings as a cook during the decade preceding the petition's 
filing date. Without evidence showing that the petitioner has earned a high salbry in relation to others in her 
field during the period proximate to the petition's filing date, the petitioner has not shown that her prior 
acclaim from Mexico has been sustained. 
On appeal, counsel challenges the director's comparison of the petitioner's salw in Mexico to that of cooks 
from the United States. We agree with counsel that this was not an appropriate basis for comparison. The 
petitioner, however, has submitted no reliable statistical data in support of her claim that her salary was 
significantly high in relation to that of other Mexican specialty cooks. Further, we concur with the director's 
finding that the petitioner failed to submit independent, objective evidence to support the assertions of the 
aforementioned witnesses. The evidence submitted by the petitioner is not adequate to show that her 
compensation was significantly high in relation to others in her field or that her recqnt earnings have sustained her 
prior acclaim from Mexico. The petitioner has not established that she meets this cditerion. 
In his appellate brief, counsel argues that the petitioner "meets at least 3 out of 10" of the criteria at 8 C.F.R. 
fj 204.5(h)(3), but neither his appellate brief nor his response to the director's reqpest for evidence specifically 
identifies the third criterion that the petitioner seeks to fulfill. 
In this matter, we concur with the director's finding that the petitioner has failed to 4emonstrate that she meets at 
least three of the criteria at 8 C.F.R. $ 204.5(h)(3). 
As stated previously, the sta$te and regulations require "extensive documentatibn" for eligibility under this 
visa classification. The comnpentary for the proposed regulations implementing seq'tion 203(b)(l)(A) of the Act 
provide that the "intent of Coqgress that a very high standard be set for aliens of exIraordinary ability is reflected 
in this regulation by requiring the petitioner to present more extensive documenqtion than that required" for 
lesser classifications. 56 Fed Reg. 30703, 30704 (July 5, 1991). The criteria reQluire specific documentation 
I 
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beyond mere testimony, such as awards, published material about the alien, and memberships requiring 
outstanding achievement. As an example of the specific nature of the documelltation required, the regulation at 
8 C.F.R. 8 204.5(h)(3)(iii) requires the '"title, date and author" of the publisheq material about the alien. While 
letters of support may place the evidence for the regulatory criteria in conte$t, they cannot serve as primary 
evidence of the achievement required by the criteria. Further, while the regilation at 8 C.F.R. 5 204.5(h)(4) 
permits "comparable evidence" where the ten criteria do not "readily applyb' to the alien's occupation, the 
regulation neither states nor implies that letters attesting to the alien's standing in the field are "comparable" to the 
strict documentation requirements in the regulations setting forth the ten criteria, Evidence in existence prior to 
the preparation of the petition carries greater weight than letters of support prqpared especially for submission 
with the petition. As previously discussed under the criteria at 8 C.F.R. $5 204.9(h)(3)(viii) and (ix), we find that 
the claims made in the opinion letters are not adequately supported by contemporaneous evidence. Where the 
regulations require specific, objective evidence in support of a petition, the petitioner's burden of proof is not 
satisfied by submitting unsupported testimony. See 8 C.F.R. 3 103.2(b)(l). ~+ccordingly, the AAO gives the 
submitted letters less weight and finds them unpersuasive on the whole. See Matter of Caron International, 
19 I&N Dec. 791 (Comm. 1988). Where an opinion is not in accord with other information or is in ally way 
questionable, the AAO is not required to accept or may give less weight to that evidence. 
The statute and r&ulations also require the petitioner's acclaim to be "sustained." In this case, the petitioner's 
extraordinary ability claim rests entirely on activities that occurred in Mexico prim to her August 24, 1994 arrival 
in the United States. There is no indication that whatever level of acclaim the petitioner had in Mexico in the 
early 1990's has been sustained since her entry into the United States more than a decade ago. 
Review of the record does not establish that the petitioner has distinguished helrself to such an extent that she 
may be said to have achieved sustained national or international acclaim or to be within the small percentage 
at the very top of her field. The evidence is not persuasive that the petitioner's achievements set her 
significantly above almost all othezs in her field at a national or international Itvel. Therefore, the petitioner 
has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be 
approved. 
Beyond the decision of the director, the regulation at 8 C.F.R. 8 204.5(h)(5) requires "clear evidence that the 
aIien is coming to the United States to continue work in the area of expertisel Such evidence may include 
letter(s) from prospective employer(s), evidence of prearranged cornmitmqnts such as contracts, or a 
statement from the beneficiary detailing plans on how he or she intends to cqntinue his or her work in the 
United States." The record includes no such evidence. 
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. Ch1. 2001), afld. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(@oting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of provihg eligibility for the benefit 
*- Page 7 
sought remains entirely wit11 the petitioner. Section_291 of the Act, 8 U.S.C(. 3 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.