dismissed EB-1A Case: Culinary Arts

(b)(6)
DATE: 
DEC 1 5 2014 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-29013) 
within 33 days of the date of this decision. Please review the Form I-290B inst r ucti ons at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirenwnts. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
'((\�berg 
� Chief, Administrative Appeals Office · 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts as a senior pastry 
chef, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(A), which makes visas available to aliens 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 determined the petitioner 
had not established the sustained national or international acclaim necessary to qualify for this visa 
classification. 
For the reasons discussed below, we agree that the petitioner has not established his eligibility for 
the exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence 
of a one-time achievement pursuant to 8 C.F.R. § 204.5(h)(3), or evidence that satisfies at least three 
of the ten regulatory criteria set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). As such, the 
petitioner has not demonstrated that he is one of the small percentage who are at the very top in the 
field of endeavor, and that he has sustained national or international acclaim. See 8 C.F.R. 
§ 204.5(h)(2), (3). Accordingly, we will dismiss the petitioner's appeal. 
I. LAW 
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 science s, 
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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
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individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 1015t Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. !d.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through evidence of a one-time achievement (that is, a major, internationally recognized award). If 
the petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying 
evidence that meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)­
(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 201 0) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. 
USCIS, 772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCrS' proper application of Kazarian). 
aff'd, 683 F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) 
(finding that USCrS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 201 0) (holding that the "truth is to be determined not by the quantity of evidence 
alone but by its quality" and that users examines "each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the evidence, to 
determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
On appeal, the petitioner claims: 
[He] readily meets at least 4 of these criteria demonstrating his extraordinary ability 
in the culinary arts, with a particular focus in the highly-specialized field of fine 
Kosher pastry design, including: 
1. He has performed in lead/critical roles with 
organizations/establishments with distinguished reputations. 
2. He has made major artistic and business-related contributions 
to the field of culinary arts, with a particular focus on the 
development of high quality bakery and dessert products for 
the international Kosher food industry. 
3. He and his work have been displayed/featured at major 
culinary exhibitions and showcases. 
4. His work has been otherwise recognized by leading experts in 
the field of international culinary arts. 
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Regarding the petitioner's reference to numbers 1 - 3 above, they relate to the regulatory categories 
of evidence regarding the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii), the original contributions criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), and the artistic display criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vii). Regarding the petitioner's reference to number 4 above, there is no specific 
criterion under the regulation at 8 C.P.R. § 204.5(h)(3)(i)-(x) that would be met by simply 
demonstrating that the petitioner's work has been recognized by experts in the field. Therefore, we 
will consider the petitioner's evidence as to how it relates to any of the claimed criteria on appeal. 
Furthermore, the director determined that the petitioner did not submit any evidence regarding the 
awards criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(i), the judging criterion pursuant 
to the regulation at 8 C.P.R. § 204.5(h)(3)(iv), the scholarly articles criterion pursuant to the 
regulation at 8 C.P.R. § 204.5(h)(3)(vi), the high salary criterion pursuant to the regulation at 8 
C.P.R. § 204.5(h)(3)(ix), and the commercial successes criterion pursuant to the regulation at 8 
C.P.R. § 204.5(h)(3)(x). In addition, the director determined that the petitioner did not meet the 
membership criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(ii) and the published 
material criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(iii). On appeal, the petitioner 
did not contest the findings of the director for these criteria or offer additional arguments. Therefore, 
the petitioner has abandoned these issues. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 
2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885, at *1, *9 (E.D.N.Y. 
Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed to raise them on 
appeal). 
A. Evidentiary Criteria 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(v) requires that the evidence must rise to the 
level of ori gi nal contr i buti o ns "o f maj or significance in the field." The phrase "major significance" 
is not superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, 
L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 
2003). 
The petitioner submitted copies of a few of his recipes, as well as evidence reflecting that his recipes 
were published twice in and that his recipes and work were used as promotional 
material for The petitioner, however, did not demonstrate that 
his recipes are original contributions of major significance in the field. Submitting samples of the 
petitioner's work is insufficient to meet the plain language of the regulation at 8 C. F. R. 
§ 204.5(h)(3)(v) without documentary evidence demonstrating that his work has been of major 
significance in the field. The petitioner submitted no evidence reflecting how his recipes meet this 
criterion. For example, the petitioner did not submit any evidence showing that his original recipes 
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are used throughout his field or have garnered significant attention, so as to demonstrate that they are 
of major significance in the field. 
The petitioner also submitted recommendation letters that praise him for his work as a chef but do 
not indicate that he has made original contributions of major significance in the field. The letters 
provide only general statements without offering any specific information to establish how the 
IJetitioner's work has been of major significance. For instance, Chef for the 
stated that the petitioner "is one of only three chefs 
who have passed all the steps of creation in sugar." Chef did not provide any further 
information to demonstrate how this qualifies as a contribution of major significance in the field . 
Moreover, General Manager for stated that the petitioner "is one of the only 
pastry cooks who knows rsic] how to address a dish with different ideas and an endless creative 
touch." Again, Mr. did not further explain how this constitutes an original contribution of 
major significance in the field. Mr. . aid not, for example, elaborate on the influence or 
impact of the petitioner's work on the field that would be reflective of the significance of the 
petitioner's work. 
In addition, Owner of stated that the petitiOner "is uniquely 
qualified and positioned to positively impact the American baking industry" and "[h] is passion, 
creativity, experience and technical skill combine to create a rare individual who affects others 
across an industry." Mr. did not indicate how the petitioner's skills or personal traits are 
original contributions of major significance in the field. Having a diverse skill set is not a 
contribution of major significance in and of itself. Rather, the record must be supported by evidence 
that the petitioner has already used those unique skills to impact the field at a significant level in an 
original way. Furthermore, assuming the petitioner's skills are unique, the classification sought was 
not designed merely to alleviate skill shortages in a given field. In fact, that issue properly falls 
under the jurisdiction of the Department of Labor through the alien employment labor certification 
process. See Matter of New York State Devartment of Transportation, 22 I&N Dec. 215, 221 
(Assoc. Comm'r 1998). Further, Mr. generally speculates about how the petitioner will 
affect the field at some point in the future. Eligibility must be established at the time of filing. 8 
C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm' r 1971 ). A 
petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981), further provides that USCIS cannot "consider facts that 
come into being only subsequent to the filing of a petition." !d. at 176. The assertion that the 
petitioner's work is likely to be influential is not adequate to establish that his work is already 
recognized as major contributions in the field. 
The opinions of the petitioner's references are not without weight and have been considered. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is ultima tely 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
!d. The submission of reference letters supporting the petition is not presumptive evidence of 
(b)(6)
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eligibility; users may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting 
that expert opinion testimony does not purport to be evidence as to "fact"). Thus, the content of the 
references' statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in support of 
an immigration petition are of less weight than preexisting, independent evidence that one would 
expect of a musician who has made original contributions of major significance in the field. Cf 
Visinscaia v. Beers, 4 F.Supp.3d at 134-135 (concluding that USCIS' decision to give little weight to 
uncorroborated assertions from professionals in the field was not arbitrary and capricious). 
While those familiar with the petitioner's work generally describe it as "extraordinary," there is 
insufficient documentary evidence demonstrating that the petitioner's work is of major significance. 
This regulatory criterion not only requires the petitioner to make original contributions, the 
regulatory criterion also requires those contributions to be of major significance. Vague, solicited 
letters that repeat the regulatory language but do not explain how the petitioner's contributions have 
already influenced the field is insufficient to establish original contributions of major significance in 
the field. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th eir. 2009), aff'd in part, 596 F.3d 1115. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates, Inc. v. Meissner, No. 95 eiV. 10729, *1, *5 (S.D.N.Y. Apr. 18, 1997). fn 
2010, the Kazarian court reiterated that the USCIS' conclusion that the "letters from physics 
professors attesting to [the petitioner's] contributions in the field" were insufficient was "consistent 
with the relevant regulatory language." 596 F.3d at 1122. Moreover, the letters consid ered above 
primarily contain bare assertions of the petitioner's status in the field without providing specific 
examples of how those contributions rise to a level consistent with major significance in the field. 
Without supporting evidence, the petitioner has not met his burden of establishing his present 
contributions of major significance in the field. Further, USers need not accept primarily 
conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 
(D.C. Dist. 1990). 
Without additional, specific evidence showing that the petitioner's work has been rnajorly 
influential, widely applied throughout his field, or has otherwise risen to the level of contributions of 
major significance, the petitioner has not established that he meets this criterion. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of the d isplay of the 
alien's work in the field at artistic exhibitions or showcases." 
In response to the director's request for evidence (RFE) pursuant to the regulation at 8 C.F.R. 
§ 103.2(b )(8), the petitioner claimed: 
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[His] work has been displayed and featured at major international culinary exhibitions 
and showcases, including but not limited to: the the 
event sponsored by 
(based [sic] on his recognition as one of the area's 
outstanding pastry chefs; and the bakery seminar in 
The petitioner submitted a letter from Chair of the 
Chef at , who stated that they "conducted seminars for advanced bakers at 
through the work of the [petitioner]." In addition, the petitioner 
submitted a letter from Head Chef for Director of 
who stated that they decided to take "events into nature or on the 
river," and they turned to the petitioner "to advise, supervise and lead the process." Further, the 
petitioner submitted a document entitled, _ 
Finally_, the petitioner submitted photographs with handwritten captions reflecting ' 
," and' 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires that the petitioner's work 
has been displayed "at artistic exhibitions and showcases." The petitioner has not demonstrated that 
his work was displayed at any artistic exhibitions or showcases consistent with the plain language of 
this regulatory criterion. The petitioner did not submit sufficient documentary evidence establishing 
that conducting seminars or lectures in a teaching environment equates to displaying his work at 
artistic exhibitions or showcases. Similarly, making pastries for events on behalf of is not 
displaying his work at an exhibition or showcase. The petitioner did not identify an exhibition or 
showcase that displayed his work while employed by Furthermore, being recognized at a 
luncheon is not reflective of having his work displayed at an exhibition or showcase. Finally, 
submitting 'photographs without primary evidence that his work has been displayed at artistic 
exhibitions or showcases do not meet the plain language of this regulatory criterion. The petitioner 
submitted no documentation demonstrating that the are 
considered exhibitions and showcases and that his work was displayed. As the petitioner has not 
demonstrated that he has d ispla yed his work at any artistic exhibitions or showcases, he has not 
established that he meets the plain language of this regulatory criterion. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation." In general, a leading role is evidenced from the role itself, and a critical role is one in 
which the alien contributed in a way that is of significant importance to the outcome of the 
organization or establishment's activities. 
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The petitioner submitted a letter from , Manager of who 
stated that the petitioner was "invited personally by us between the months of 8-10/2012 as a 
Culinary Consultant for the factory," and he "produced with the team a resentation of new desserts 
and was selected as a model chef for the dessert collection." Mr. did not provide any further 
information that would demonstrate that the petitioner performed in a leading or critical role for 
The record lacks specific information showing how the petitioner's role as a 
culinary consultant was leading or contributed to the overall success of the company. Further, the 
petitioner submitted a letter from . 
_ 
, to the petitioner 
thanking him for his "hard work, [his] ethics, effort and loyalty, during his time [he] worked with 
[the hotel]." None of these personal traits, however, are indicative of the petitioner perform ing in a 
leading or critical role. Moreover, the petitioner did not submit any documentary evidence 
establishing that kitchen have distinguished 
reputations. 
In addition, the petitioner submitted letters that confirmed the petitioner's employment but did not 
provide any evidence that the petitioner's roles were leading or critical. For instance, 
) confirmed that the petitioner worked as a pastry c hef 
for the hotel from May 1, 1995 to April 9, 1996. Moreover, 
confirmed that the petitioner worked as a pastry chef from January 1998 to January 
1999. Further, , Chairman of the , stated that the petitioner 
"supervised the kitchen and confectionary operations of the Job titles alone, howeve r, 
do not establish the nature of the petitioner's roles as either leading or critical. The letters do not 
describe how the petitioner's position fits within the overall hierarchy of the organizations or the 
duties the petitioner performed for the organizations. The letters fall short of specifying how the 
petitioner contributed to the organizations in a way that is significant to their success or what roles 
he played in the organizations' activities. Furthermore, although the petitioner submitted 
screenshots from the petitioner did not submit any independent, 
objective evidence establishing that the hotels have distinguished reputations. USCIS need not rely 
on self-promotional material. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 2007) 
aff'd 2009 WL 604888 (91h Cir. 2009) (concluding that self-serving assertions on the cover of a 
magazine as to the magazine's status is not reliable evidence of major media). Regardless, the 
screenshots are about the hotels rather than about the kitchen or pastry depart ments. There is no 
evidence demonstrating that the these departments have distinguished reputations. 
Finally, the petitioner submitted job letters from Director of 
who specifically described the petitioner's job responsibilities as a senior pastry chef since 2009 and 
an employment contract from the restaurant group. The documentary evidence does demonstrate 
that he performed in a leading role for The petitioner did not establish that 
has a distinguished reputation. The petitioner submitted a single screensho t 
from that provides a brief history of the business. The petitioner did not 
submit any independent, objective evidence demonstrating the reputation of 
See Braga v. Poulos, No. CV 06 5105 SJO aff'd 2009 WL 604888. The petitioner did not submit, 
for example, any evidence that distinguishes from other similar restaurants. 
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Even if the petitioner were to establish that has a distinguished reputation, 
which he did not, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) requires the 
petitioner to perform in a leading or critical role for "organizations or establishments (em phasis 
added)" in the plural. The use of the plural is consistent with the statutory requirement for extensive 
evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. 
§ 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 C.P.R. §§ 204.5(h) (3)(iv) 
and (ix) only require service on a single judging panel or a single high salary. When a regulatory 
criterion wishes to include the singular within the plural, it expressly does so as when it states at 
8 C.P.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, 
the plural in the remaining regulatory criteria has meaning. In a different context, federal courts 
have upheld USC IS' ability to interpret significance from whether the singular or plural is used in a 
regulation. Cf Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 (D.C. Cir. March 26, 
2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005, at *1, *10 (D. Or. Nov. 30, 2006) 
(upholding an interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign 
equivalent degree at 8 C.P.R. § 204.5(1)(2) requires a single degree rather than a combination of 
academic credentials). 
Accordingly, the petitioner did not establish that he meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. 0-1 NONIMMIGRANT STATUS 
On appeal, the petitioner claims: 
[T]he decision fails to give any mention whatsoever to the fact that the Service, in 
previously considering virtually the same evidence submitted with the initial I-140 
filing (but not including any of the substantial evidence subsequently submitted with 
the RFE response), has approved 3 0-1 petitioner for [him] over the past 5 years 
recognizing his extraordinary ability as a senior pastry chef. 
Although the words "extraordinary ability" are used in the Act for classification of artists under both 
the nonimmigrant 0-1 and the first preference employment-based immigrant categories, the statute 
and regulations define the term differently for each classification. Section 101(a)(46) of the Act 
states that "[t]he term 'extraordinary ability' means, for purposes of section 101(a)(15)(0)(i), in the 
case of the arts, distinction." The 0-1 regulation reiterates that "[ e ]xtraordinary ability in the field of 
arts means distinction." 8 C.P.R. § 214.2( o )(3)(ii). "Distinction" is a lower standard than that 
required for the immigrant classification, which defines extraordinary ability as "a level of expert ise 
indicating that the individual is one of that small percentage who have risen to the very top of the 
field of endeavor." 8 C.P.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also 
differ in several respects, for example, nominations for awards or prizes are acceptable evidence of 
0-1 eligibility, 8 C.P.R.§ 214.2( o)(3)(iv)(A), but the immigrant classification requires actual receipt 
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of nationally or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the 
clear statutory and regulatory distinction between these two classifications, the petitioner's rece ipt of 
0-1 nonimmigrant classification is not evidence of his eligibility for immigrant classification as an 
alien with extraordinary ability. Further, an approval of a nonimmigrant visa does not mandate the 
approval of a similar immigrant visa. Each case must be decided on a case-by-case basis upon 
review of the evidence of record. 
Many 1-140 immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. See, 
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. uf 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Su pp . at 1103 . 
Some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 2Y3 F. 
Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 
(5th Cir. 2004) (finding that prior approvals do not preclude USCIS from denying an extension of 
the original visa based on a reassessment of the alien's qualifications). 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 1 9 I&N Dec. 593, 597 (Comm'r. 1988). Agencies need not treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers 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 the alien, we would not be bound to follow the contradictory decision of a 
.service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, *1, *3 
(E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001 ), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterfrises, Inc. v. United States, 229 F. Supp. 2d 1025, 1 043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (91 Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conducts appellate review on a de novo basis). 
IV. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of his or her field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) 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," and (2) "that the alien has sustained national or international 
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acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requ irem ent of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5 (h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought.1 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. 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). Here, that burden has not been m et. 
ORDER: The appeal is dismissed. 
1 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't ofJustice, 
381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding, we maintain the jurisdiction to con duct a final 
merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see 
also INA §§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.P.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that 
legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).