dismissed EB-1A Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
In Re : 6959088 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a chef, seeks classification as an individual of extraordinary ability. See Immigration and 
Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S .C. § 1153(b)(l)(A) . This first preference 
classification makes immigrant visas available to those who can demonstrate their extraordinary ability 
through sustained national or international acclaim and whose achievements have been recognized in 
their field through extensive documentation . 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish , as required, that the Petitioner meets at least three of the ten initial evidentiary criteria for 
this classification. 
On appeal , the Petitioner submits a brief and new evidence , claiming that he meets at least three 
evidentiary criteria and is otherwise qualified for the benefit sought. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter ofChawath e, 25 I&N Dec . 369,375 (AAO 2010) . The Administrative 
Appeals Office (AAO) reviews the questions in this matter de nova. See Matter of Christo 's Inc., 26 
I&N Dec . 537 , 537 n.2 (AAO 2015) . Upon de nova review , we agree with the Director that the 
Petitioner has not demonstrated his eligibility as an individual of extraordinary ability . 
I. LAW 
Section 203(b )(1) of the Act makes visas available to immigrants with extraordinary ability 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 into the United States will substantially benefit prospectively 
the United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). If that petitioner does not submit this evidence, 
then he or she must provide sufficient qualifying documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). 
II. ANALYSIS 
The Petitioner is currently employed as the executive chef at I I a restaurant in._l __ _. 
Texas. According to his resume, he has worked in various chef positions at restaurants in the United 
States and Italy since 2000. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). 
The Petitioner initially claimed that he meets six of the ten initial evidentiary criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x), and now claims on appeal that he meets four criteria. 1 The Director 
found that the Petitioner met one of the evidentiary criteria, relating to performance in a leading or 
critical role with an organizations or establishments that has a distinguished reputation. See 8 C.F.R. 
~(h)(3)(viii). The Petitioner provided evidence of his critical role as executive chef ofl I 
L___Jalong with media coverage and other evidence demonstrating that this establishment enjoys a 
distinguished reputation. 
On appeal, the Petitioner asserts that he also meets the evidentiary criteria relating to published 
material about him and relating to his work, display of his work at artistic exhibitions or showcases, 
and high salary or other significantly high remuneration. After reviewing all of the evidence in the 
record, we conclude that the Petitioner did not establish that he meets at least three criteria. 
1 The Petitioner has not pursued his initial claim that he meets the criteria related to memberships in associations in the 
field that require outstanding achievements of their members (8 C.F.R. § 204.5(h)(3)(ii)) or commercial success in the 
performing arts (8 C.F.R. § 204.5(h)(3)(x)). Therefore, we deem these issues to be waived and will not address these 
criteria in this decision. See, e.g., Matter of M-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). 
2 
Published material about the individual in professional or major trade publications or 
other major media, relating to the individual's work in the field.for which class[fication 
is sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 8 C.F.R. § 204.5(h)(3)(iii) 
On appeal, the Petitioner claims that he meets this criterion based on previously submitted evidence 
of articles that appeared in Italian publications including fl Venerdi Di' Repubblica and Cucina 
Italiana. 
The article from II Venerdi Di' Repubblica is about the Beneficia and his work. We note that the 
article that appeared in the magazine Cucina Italiana, while titled .__ _____ .,..... _____ ---r-....,..... 
indicates that the chef interviewed for the 2008 article had been working for.__ ___ _. smce 
December 2007. The Beneficiary's resume does not state that he worked for that restaurant. Rather, 
it indicates that he worked in Italy atl lfrom 2006 to 2008 and for from 2008 to 
2010. There is no evidence in the record of the Petitioner's employment as a chef at'---~~ m 
2008. Therefore, we cannot determine that this article is about the Petitioner. 
The Petitioner did not provide any supporting evidence, at the time of filing or in response to the 
Director's request for evidence (RFE), to establish that either publication qualifies as a professional 
or major trade publication or other major media. 2 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). In this case, the Director advised the Petitioner 
in the RFE that additional documentary evidence would be needed to establish that any of the 
submitted articles satisfy the requirement that the material be published in professional or major trade 
publications or other major media. Specifically, the Director advised that such evidence could include 
the circulation (on-line and/or in print) for the publications in which the material appeared and the 
intended audience of the publication. 
The Petitioner did not acknowledge this request or submit the requested evidence in response to the 
RFE, but now submits evidence pertaining to the circulation of the two above-referenced publications 
on appeal. We note that the Petitioner does not claim that the previously submitted evidence was 
sufficient to meet this criterion or claim that the Director's determination was otherwise erroneous 
based on the evidence before him at the time of the decision. 
When, as here, the record shows that a petitioner was put on notice of an evidentiary deficiency and 
was given an opportunity to address that deficiency, we will not accept evidence regarding that 
deficiency when offered for the first time on appeal. See, e.g., Soriano, 19 I&N Dec. 764; Obaigbena, 
19 I&N Dec. 533. Accordingly, the Petitioner has not established that he meets this criterion. 
2 See USCIS Policy Memorandum PM 602-0005 .1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADll-14 7 (Dec. 22. 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. (providing that evidence of published material in 
professional or major trade publications or in other major media publications should establish that the circulation (on-line 
or in print) is high compared to other circulation statistics). 
3 
Evidence of the display of the individual's work in the field at artistic exhibitions or 
showcases. 8 C.F.R. § 204.5(h)(3)(vii) 
In order to meet this criterion, the Petitioner must establish that the work displayed is his own work 
product and that the venues at which his work was displayed were artistic exhibitions or showcases. 3 
The Petitioner claims that he meets this criterion based on his participation in an "Ultimate Chef 
Showdown," a judy;ed cooking competition that was held at the .__ ___________ ____. 
I O ~ 12015.4 Thd lis described in the submitted materials as "the 
world's premier event for the I !industry." According to the description of the 2015 event, 
the chef tournament was included as part of the Expo's focus on food and beverage operations as "one 
the most profitable categories withinl'- I" 
While the evidence confirms the Petitioner's participation in the "Ultimate Chef Showdown," the 
evidence does not show that the event, al I conference, was intended as an "artistic 
exhibition or showcase" for display of the work of the chefs involved. Rather, the record reflects that 
chefs from certain! I properties were invited to participate as part of the conference's 
programming in the food and beverage sector. Accordingly, the Petitioner did not provide evidence 
of the display of his work at artistic exhibitions or showcases. 
Evidence that the individual has commanded a high salary or other sign[ficantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
The Director acknowledged that the Petitioner submitted evidence of his prior earnings, including a 
copy of his latest IRS Forms W-2, Wage and Tax Statements. However, the Director determined that 
the Petitioner did not satisfy the criterion because he did not provide any "earning data from other 
sources showing that [his] salary is high in relation to others in the field." 
The record reflects that the Director advised the Petitioner of this deficiency in the RFE, instructed the 
Petitioner to provide "independent evidence" to establish that his salary is high in relation to others, and 
provided a list of the types of evidence that may satisfy this evidentiary requirement. The Petitioner did 
not acknowledge this request or submit any of the requested evidence in response, but now submits 
comparative salary data from Department of Labor resources on appeal. The Petitioner does not claim 
that the Director reached an erroneous conclusion based on the evidence previously submitted. 
As noted above, where, as here the record shows that a petitioner was put on notice of an evidentiary 
deficiency and was given an opportunity to address that deficiency, we will not accept evidence 
3 See also USCIS Policy Memorandum PM 602-0005.1, supra at 9-10 (stating that officers should use the common 
dictionary definitions of "exhibition" and "showcase" in evaluating this criterion, and indicating that a "showcase" is "a 
setting, occasion, or medium for exhibiting something or someone, especially in an attractive or favorable aspect" 
(emphasis added)). 
4 The Petitioner also submits new evidence related to his participation as a local celebrity chef in the 201 ~ I 
a fundraising event sponsored by thel Is division. The Petitioner filed this petition in 
2018. The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from 
the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Accordingly, we will not evaluate this 
new evidence in determining whether the Petitioner met the criterion at 8 C.F.R.§ 204.5(h)(3)(vii) at the time of filing. 
4 
regarding that deficiency when offered for the first time on appeal. See, e.g., Matter of Soriano, 
19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner previously received 0-1 status, a classification 
reserved for nonimmigrants of extraordinary ability. Although USCIS has approved 0-1 
nonimmigrant visa petitions filed on behalf of the Beneficiary, the prior approvals do not preclude 
USCIS from denying an immigrant visa petition which is adjudicated based on a different standard -
statute, regulations, and case law. Many Form 1-140 immigrant petitions are correctly denied after 
USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consulting Inc. v. INS, 293 F. Supp. 
2d25 (D.D.C. 2003); IKEA USv. US Dept. of Justice, 48 F. Supp. 2d22 (D.D.C. 1999); FedinBrothers 
Co. Ltd., 724 F. Supp. at 1103. Furthermore, our authority over the USCIS service centers, the office 
adjudicating the nonimmigrant visa petition, is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director has approved a nonimmigrant petition on 
behalf of an individual, we are not bound to follow that finding in the adjudication of another 
immigration petition. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at 
*2 (E.D. La. 2000) 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section203(b)(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and he is one of the small percentage who has risen to 
the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F .R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
5