dismissed EB-1A Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 15, 2023 InRe : 28881711 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a restaurant business, seeks to classify the Beneficiary, an executive chef, as an individual 
of extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b )( 1)(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 Nebraska Service Center denied the petition, concluding the Petitioner did not 
establish that the Beneficiary meets the initial evidence requirements for this classification by 
satisfying at least three of the ten criteria under 8 C.F.R. § 204.5(h)(3) or demonstrating his receipt of 
a major, internationally recognized award. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
An individual is eligible for the extraordinary ability immigrant classification under section 
203(b )( 1 )(A) of the Act if: 
• They have extraordinary ability in the sciences, arts, education, business, or athletics which 
has been demonstrated by sustained national or international acclaim and their achievements 
have been recognized in the field through extensive documentation; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• Their entry into the United States will substantially benefit the country in the future. 
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 a 
beneficiary's one-time achievement (that is, a major, internationally recognized award). If a petitioner 
does not submit this evidence, then they must provide documentation that the beneficiary 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 demonstrates that the beneficiary 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) (discussing a two-part review where the documentation is first counted and then, 
if fulfilling the required number of criteria, considered in the context of a final merits determination); 
see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013). 
II. ANALYSIS 
The Beneficiary is a chef who completed his culinary training in the United Kingdom and has over 14 
years of progressive professional experience in his field. The Petitioner, which operates an upscale 
restaurant in southern California, has employed him as its executive chef since 2019. 
A. Evidentiary Criteria 
The Petitioner does not claim the Beneficiary qualifies for extraordinary ability classification based 
on a one-time achievement; therefore, it must submit evidence demonstrating that he meets at least 
three of the ten initial evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the 
Petitioner submitted sufficient evidence to establish that the Beneficiary has performed in leading or 
critical roles for establishments that have a distinguished reputation and therefore satisfies the criterion 
at 8 C.F.R. § 204.5(h)(3)(viii). The record supports this conclusion based on evidence related to the 
Beneficiary's leading or critical roles with the Petitioner and a prior U.S. employer, a Los Angeles­
based restaurant that enjoys a distinguished reputation. 
On appeal, the Petitioner asserts the previously submitted evidence demonstrates that the Beneficiary 
meets two additional criteria and that the Director erred in determining he is not eligible for 
classification as an individual of extraordinary ability. 1 Specifically, the Petitioner maintains that it 
met its burden to establish that the Beneficiary has displayed his work at artistic exhibitions or 
showcases and that he has commanded a high salary, or other significantly high remuneration for 
services, in relation to others in the field. See 8 C.F.R. § 204.5(h)(3)(vii) and (ix). 
For the reasons provided below, we conclude that the Petitioner has not demonstrated that the 
Beneficiary satisfies the requirements of at least three of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). 
1 The Petitioner initially claimed that the Beneficiary could meet up to five of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), 
including the criterion at 8 C.F.R. § 204.5(h)(3)(i), relating to receipt of lesser nationally or internationally recognized 
awards for excellence, and at 8 C.F.R. § 204.5(h)(3)(v), relating to original contributions of major significance in the field. 
The Director determined that the Petitioner did not demonstrate the Beneficiary meets either of these criteria and the 
Petitioner does not contest the Director's findings or otherwise address these criteria on appeal. An issue not raised on 
appeal is waived. See, e.g.. Matter o(O-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 I&N 
Dec. 657,658 n.2 (BIA 2012)). 
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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) 
At the time of filing in September 2021, the Petitioner provided evidence that the Beneficiary was 
earning an annual salary of $85,000 for his services as an executive chef. Evidence relevant to 
demonstrating that a given salary is a "high salary" may include comparative wage or remuneration 
data for the person's field, such as geographical or position-appropriate compensation surveys. See 
generally, 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policy-manual (providing 
guidance on evaluating initial evidence of extraordinary ability under the regulatory criteria at 8 C .F.R. 
§ 204.5(h)(3)). 
In support of its claim that the Beneficiary commands a high salary in relation to others, the Petitioner 
submitted the Bureau of Labor Statistics' (BLS) Occupational Outlook Handbook entry for "Chefs 
and Head Cooks," which states that the median annual wage for the occupation in the United States 
was $53,380 in May 2020, with the 10 percent of workers in the field earning more than $90,790. The 
submitted excerpt states that "pay is usually highest in upscale restaurants and hotels, where many 
executive chefs work, as well as in major metropolitan and resort areas." The Petitioner also submitted 
BLS Occupational Employment and Wage Statistics data which indicated a mean annual wage of 
$59,190 for chefs and head cooks in thel !metropolitan area. 
In a request for evidence (RFE), the Director advised the Petitioner that the BLS data alone was not 
sufficient to demonstrate that the Beneficiary has commanded a "high salary" as required by the plain 
language of the regulation. We agree as the submitted data included only an average salary for the 
city where the Beneficiary works and therefore cannot sufficiently support a claim that his salary is 
high, as opposed to "above average," in relation to similarly employed workers in the same geographic 
area. 
The Petitioner's response to the RFE included additional evidence of the Beneficiary's earnings for 
the years 2022 and 2023, including evidence that he earned a salary of $95,000 as of early 2023. On 
appeal, the Petitioner asserts that the Director erroneously excluded this evidence. However, as noted 
by the Director, the Petitioner's evidence must establish the Beneficiary met this criterion at the time 
it filed this petition. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved when a 
beneficiary, initially ineligible at the time of filing, becomes eligible under a new set of facts. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Therefore, our analysis of this 
criterion is based on evidence of the Beneficiary's annual salary as of September 2021. 
The Director determined that the Petitioner did not meet this criterion; however, the decision does not 
fully address the evidence submitted in response to the RFE, which included additional salary data 
published by Glassdoor, Indeed and ZipRecruiter. The data from Glassdoor indicates an average salary 
of $52,752 for the position of "head chef' in the United States, with the highest earners receiving up 
to $78,000; however, it does not provide salary data for the metropolitan area where the Beneficiary 
works. Further, Glassdoor lists "executive chef' as a "related career" with a higher average salary of 
$65,491. Given that the Beneficiary is employed as an executive chef and performs higher level duties 
than those attributed to "head chefs," we cannot conclude that the head chef data provides an 
appropriate basis for comparison. 
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The information the Petitioner submitted from Indeed indicates that the average base salary for a head 
chef in the United States is $58,778 and it identifies a "high" salary of $83,048. However, it also 
identifies I lamong the highest paying cities for this occupation, with an average annual 
salary of $76,159. While the Beneficiary's salary of $85,000 is above this average salary for a similar 
but distinct occupation, there is insufficient data to support a determination that he earns a high salary 
in relation to others working as executive chefs in [ I Finally, the information from 
ZipRecruiter is insufficient for similar reasons, as it is limited to national data for the occupation of 
"head chef'' and is therefore not a position-appropriate or geographically specific compensation 
survey. The Petitioner did not submit salary data for "executive chefs" from either of these sources or 
indicate that such information was not available. 
Finally, the Petitioner provided California wages for chefs and head cooks from the U.S. Department 
of Labor's (DOL) O*Net Online website. This occupation includes executive chefs, but also positions 
such as chefs de cuisine, sous chefs, and private chefs. This DOL source indicates that the top 10 
percent of workers in the I !metropolitan area earn a salary of $103,930 or higher. While 
the Beneficiary's $85,000 annual salary is higher than the reported average, the evidence does not 
support a determination that it is a "high salary" in relation to similarly employed executive chefs in 
the same geographic area. 
For all the reasons discussed, the Petitioner has not demonstrated that the Beneficiary meets this 
criterion. 
B. Summary and Reserved Issues 
The Petitioner asserts that the Beneficiary meets three of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x), but did not establish that he meets the criterion at 8 C.F.R. § 204.5(h)(3)(ix), as claimed. As such, 
the Petitioner has not met its burden to establish that he meets the initial evidence requirement for this 
classification. Detailed discussion of the remaining claimed criterion at 8 C.F.R. § 204.5(h)(3)(vii) 
cannot change the outcome of the appeal. Therefore, we reserve and will not address this criterion. 
See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not 
generally required to make findings and decisions unnecessary to the results they reach); see also 
Matter ofD-L-S-, 28 I&N Dec. 568, 576-77 n.10 (BIA 2022) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
C. Prior 0-1 Approvals 
We acknowledge that the Beneficiary is employed by the Petitioner in 0-1 B status, a classification 
reserved for nonimmigrants of extraordinary ability in the arts. Although USCIS has approved at least 
two 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 
statute, regulations, and case law. The nonimmigrant and immigrant categories have different criteria, 
definitions and standards for persons working in the arts. "Extraordinary ability in the field of arts" 
in the nonimmigrant 0-1 category means distinction. 8 C.F.R. § 214.2(o)(3)(ii). But in the immigrant 
context, "extraordinary ability" reflects that the individual is among the small percentage at the very 
top of the field. Moreover, each petition is separate and independent and must be adjudicated on its 
own merits, under the corresponding statutory and regulatory provisions. 
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III. CONCLUSION 
The Petitioner has not submitted the required initial evidence demonstrating that the Beneficiary has 
a qualifying one-time achievement or that he meets at least three of the ten criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). 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 and conclude that it does not support a finding that the Beneficiary has the sustained acclaim 
and recognition required for the classification sought. 
The Petitioner seeks to establish the Beneficiary's eligibility for a highly restnct1ve visa 
classification. 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 the Beneficiary's 
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 section 203(b )(1 )(A) of the Act. Moreover, the record does not otherwise 
demonstrate that the Beneficiary has garnered sustained national or international acclaim in the field, 
and that he is one of the small percentage who has risen to the very top of the field of endeavor. See 
section 203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's 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. 
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