dismissed EB-1A Case: Culinary Arts

identifyingdatadeletedto 
prevent clearly unwd 
invasion of persoaal priva~y 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
EAC 04 115 51684 
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 11 53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Thls 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. 
L(;t~~c4* i7 JPI~L 
/,_kobert P. Wiemann, Chief 
' " Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" in the arts, pursuant 
to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A). 
The director determined the petitioner had not established that the beneficiary enjoys the sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary 
ability. 
On appeal, counsel asserted that the director failed to follow an April 23, 2004 memorandum that, 
according to counsel, requires the director to defer to a previous determination made on a 
nonimmigrant visa petition in behalf of the beneficiary. Counsel fails to acknowledge that, in the arts, 
the regulatory criteria for the similarly named nonirnmigrant visa classification differ fkom those for the 
immigrant classification sought, as will be elaborated below. In addition, counsel asserted that the 
director failed to consider certain evidence. Counsel also indicated that he would submit a brief 
and/or evidence to this office within 30 days. Counsel dated the appeal December 15, 2005 but 
submitted nothing further. Thus, on June 7, 2007, this office contacted counsel by facsimile, 
advising that we had received no additional materials, inquiring as to whether anything had been 
submitted and requesting a copy of any additional materials submitted. The facsimile requested a 
response within five days. As of this date, this office has received no response. Thus, we will 
adjudicate the appeal based on the evidence of record, including counsel's brief statements on 
appeal. For the reasons discussed below, the petitioner has not established that the beneficiary 
qualifies for the exclusive classification sought. Our evaluation of each criterion separately is 
consistent with a review of the evidence in the aggregate. 
Previously Approved Nonirnmigrant Visa 
Counsel previously submitted a copy of an interoffice memorandum entitled: "The Significance of a 
Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination 
Regarding Eligibility for Extension of Petition Validity," HQPRD 72A1.3, William Yates, Associate 
Director for Operations, Citizenship and Immigration Services, April 23, 2004. The memorandum, 
while acknowledging that an adjudicator is not bound by prior determinations, sets forth a policy for 
diverging from pervious determinations. The examples provided, however, all involve subsequent 
nonimmigrant petitions. The memorandum does not suggest that the director was bound to approve an 
immigrant visa petition in behalf of an alien who was the beneficiary of a previously approved 
nonimmigrant visa in a similar classification. The memorandum concludes that it is "not intended to 
be, and may not be relied upon, to create any right or benefit, substantive or procedural, enforceable at 
law by any individual or other party in removal proceedings, in litigation with the United States, or in 
any other form or manner." 
Page 3 
We do not find that an approval of a nonimmigrant visa mandates the approval of a similar 
immigrant visa. As stated in the memorandum on which counsel relies, each case must be decided 
on a case-by-case basis on the evidence of record. 8 C.F.R. €j 103.8(d). It must be noted that many I- 
140 immigrant petitions are denied after CIS 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. of Justice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Because CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant 
petitions, some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d at 29-30; see also Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 
WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude CIS from denying an 
extension of the original visa based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must 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 (1 988). 
Furthermore, the AAO's 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 had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct 51 (2001). 
More significantly in this matter, the regulation at 8 C.F.R. 5 214.2(0)(3)(ii) defines extraordinary 
ability in the arts (including the performing arts) as simply "distinction," which is fkrther defined as 
follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.F.R. 5 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is on of that small 
percentage who have risen to the very top of the field of endeavor." While the ten immigrant criteria 
set forth at 8 C.F.R. 5 204.5(h)(3) appear in the nonirnmigrant regulation, 8 C.F.R. 5 214.2(0)(3)(iii), 
they relate only to aliens who seek extraordinary ability in the fields of science, education, business or 
athletics. Separate criteria for nonimmigrant aliens of extraordinary ability in the arts are set forth in 
the regulation at 8 C.F.R. 5 214.2(0)(3)(iv). The distinction between these fields and the arts, which 
appears in 8 C.F.R. 5 2 14(0), does not appear in 8 C.F.R. tj 204.5(h). As such, the petitioner's approval 
for a non-immigrant visa under the lesser standard of "distinction" is not evidence of his eligibility for 
the similarly titled immigrant visa. More specifically, the beneficiary could meet the nonimmigrant 
criteria and not the ones necessary for immigrant classification. 
Extraordinary Ability 
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 achevements 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. 
Citizenship and Immigration Services (CIS) and legacy Immigration and Naturalization Service (INS) 
have consistently recognized that Congress intended to set a very high standard for individuals seeking 
immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-9 (November 29, 
1991). As used in ths 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. 5 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that the beneficiary has sustained 
national or intemational acclaim at the very top level. 
This petition seeks to classify the beneficiary as an alien with extraordinary ability as an executive sous 
chef. 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, intemational 
recognized award). Congress provided the Nobel Prize as an example of a one-time achievement. 
H.R. Rep. No. 101 -723, 59 (September 19, 1990). Moreover, lesser internationally recognized awards 
can only be considered in combination with meeting two other regulatory criteria. 8 C.F.R. 
5 204.5(h)(3)(i). Thus, a major internationally recognized award must, like a Noble Prize, be more than 
simply international in scope; it must also be one with a global pool of candidates and significant 
international notoriety. 
Although counsel initially asserted that the beneficiary "is the recipient of nationally and internationally 
recognized prizes/award for excellence in the culinary arts," counsel did not identify any specific 
awards and the initial submission included an academic "Service Award" fiom the International 
College of Hospitality Management for "Outstanding Performance as [a] Resident Assistant." It is 
clear that this certificate is not for recognition in the beneficiary's field of culinary arts. 
In response to the director's request for additional evidence, counsel references a letter from = 
, PresidentIBailli of the Washington Chapter of Confierie de la Chain des Rotisseurs, in 
which he affirms that the beneficiary is at the top of his field and is a chef of extraordinary ability. Mr. 
continues: "This acknowledgement of extraordinary ability by the Confverie de la Chain des 
Rotisseurs is considered one of the most significant national or international awards in the field of 
culinary arts equivalent to that of an Academy Award, a Gramrny or a Director's Guild Award." 
The petitioner submitted materials regarding the Confierie de la Chain des Rotisseurs. These materials 
only reference two youth awards and do not address recognition from individual chapter baillies. It is 
not credible to assert that a reference letter, even if it had come fiom the head of an international 
organization rather than a local city chapter head, is remotely comparable to an Academy Award, which 
involves a strict nomination process resulting in major press coverage and a voting process by members 
of the Academy resulting in the presentation of awards during an internationally televised broadcast. 
That said, the petitioner also submitted a 2003 Gastronomic Award of Excellence fiom Confierie de la 
Chain des Rotisseurs signed bym. Once again, the certificate appears to be issued by a 
local city president; the record contains no evidence that the petitioner was selected for this certificate 
fiom a global pool of candidates. Unlike other major internationally recognized prizes, the record 
contains no evidence that the selection of "awardees" for this "award" receives any press coverage in 
the general or trade media. The record contains no evidence regarding regional or national preliminary 
competitions that select the final competitors for an international competition. The materials about the 
Confierie de la Chain des Rotisseurs submitted by the petitioner mention two youth competitions 
sponsored by the group, but do not mention Gastronomic Awards of Excellence. It can be expected 
that if the Gastronomic Award of Excellence was a major internationally recognized award, the Bailli 
Delegue des Etats-Unis of the Confi-erie de la Chain des Rotisseurs would mention this award in his 
"Welcome" message, which boasts of the year's achievements, including the winners of two youth 
competitions. His message, posted on the group's website and submitted by the petitioner, does not 
mention the Gastronomic Award of ~xcellence. ' 
1 
Our attempt to confirm the significance of this award on "Google" produced no results for the phrase 
"Gastronomic Award of Excellence." While these results are not determinative, it remains that we were 
unable to confirm claims regarding the award' s international prestige. 
Page 6 
Barring the alien's receipt of a major internationally recognized 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. On appeal, counsel asserts that the director ignored the 
beneficiary's "acceptance for training at the world's elite culinary academies" and reference letters. We 
note that training at a prestigious institution is not a regulatory criterion and reference letters are not 
identified as evidence that can, by themselves, meet any of the regulatory criteria. 
The petitioner has submitted evidence alleged to meet the following criteria? 
Documentation of the alien S receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The petitioner submitted the awards discussed above. The director concluded that the petitioner had 
not submitted evidence that the beneficiary had received any lesser nationally or internationally 
recognized prizes or awards for excellence as a chef. On appeal, counsel asserts that the director did 
not give proper weight to the beneficiary's awards. 
As stated above, the beneficiary's recognition for serving as a resident assistant, albeit at a school in his 
field, does not appear to be an award for excellence in the culinary arts. Rather, resident assistants, or 
b'RA's" typically are upperclassmen who oversee student life in dormitories. In addition, the petitioner 
has not demonstrated that the beneficiary's Gastronomic Award of Excellence is an award chefs 
nationwide aspire to win. Rather, as discussed above, it appears to be local citywide recognition ftom a 
local chapter president. 
In light of the above, the petitioner has not demonstrated that the beneficiary meets this criterion. 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classzfication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Counsel does not challenge the director's conclusion that the restaurant and hotel reviews submitted, 
which do not name the beneficiary, cannot be considered published material about him. We concur 
with the director. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
While the beneficiary lists his position with the Ritz-Carlton as executive sous chef on his curriculum 
vitae, the letter from Tara Wolfe, Human Resource Coordinator at the Ritz Carlton, only confirms that 
the beneficiary worked there. Going on record without supporting documentary evidence is not 
2 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 7 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). The published materials about the Ritz-Carlton all mention other chefs. The petitioner 
submitted the June 2001 offer of "Chef de Partie" extended to the beneficiary fi-om The Ambassador's 
Sky Chef in Mumbai. An October 17, 2001 letter fi-om the Executive Chef at The Ambassador's Sky 
Chef asserts that the beneficiary conducted "management training" at this hotel and was recently 
promoted to "Sous Chef" The record contains no reviews of this hotel. The Executive Manager for 
the Mansingh Towers asserts that the petitioner undertook supervisor training there from October 1998 
through February 1999. The record contains no evidence that this position involved chef duties, let 
alone leading or critical chef responsibilities. 
The director concluded that simply being trained at, employed by or otherwise associated with 
establishments with a distinguished reputation cannot serve to meet this criterion. The director then 
stated: "The significance of the beneficiary's own contributions must be established.'' 
On appeal: counsel asserts that the director failed to give sufficient weight to the beneficiary's 
"performance in leading culinary roles at the world's premiere restaurants" and "acceptance for training 
at the world's elite culinary academies." 
The director appears to have conhsed this criterion with the criterion at 8 C.F.R. 5 204.5(h)(3)(v), 
which requires evidence of contributions of major significance. At issue for this criterion are the nature 
of the position the alien was hired to fill and the reputation of the entity that hired him. That said, we 
are not persuaded that the petitioner has submitted sufficient evidence to demonstrate that the 
beneficiary meets this criterion. 
We concur with the director's implication that the role of "student" or "supervisor trainee" at an 
institution with a distinguished reputation is not playing a leading or critical role for that institution as a 
whole. Moreover, as the beneficiary seeks classification as an extraordinary chef, hotel management or 
supervisory training devoid of chef responsibilities is irrelevant. As stated above, the petitioner did not 
submit evidence of the distinguished reputation of the Ambassador Sky Chef and the record does not 
confirm that the beneficiary served as a sous chef for the Ritz Carlton. Moreover, the petitioner did not 
submit the organizational chart or kitchen hierarchy for the beneficiary's employers. Thus, assuming 
that the beneficiary has served as a sous chef, the petitioner has not established that this position is a 
leading or critical role. 
Even if we concluded that the beneficiary meets this criterion, and, as discussed above, we find that 
certain evidence that could establish this claim is absent, the beneficiary falls far short of meeting any 
other criterion for the reasons discussed above and below. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
Page 8 
The plain language of the regulation at 8 C.F.R. tj 204.5(h)(3)(ix) requires evidence that the beneficiary 
"has commanded" high remuneration in relation to others in the field. Initially, counsel asserted that 
the beneficiary "will" command a high salary "being paid an annual salary of $50,000." In its letter, the 
petitioner asserted that the beneficiary "has commanded and will continue to command a high salary in 
relation to others in his field, being paid an annual salary of $50,000." The petitioner submitted a letter 
fro- of the Department of Employment Services, District of Columbia, asserting that the 
local prevailing wage for executive chefs is $27,165 per year. 
In the request for additional evidence, the director stated that the petitioner appeared to be comparing 
the beneficiary's remuneration with others in the field who are not of extraordinary ability and 
requested evidence "to establish the beneficiary's salary and that it is significantly higher than others 
employed in similar capacities within his field." In response, counsel asserts that the previously 
submitted evidence is sufficient, establishing that the beneficiary earns "twice" the salary of other 
executive chefs. 
The director concluded that the petitioner had not responded to the director's request for "evidence to 
establish the beneficiary's salary." On appeal, counsel asserts that the director gave insufficient weight 
to a "prevailing wage determination evidencing Beneficiary is to be paid well in excels of the prevailing 
wage." 
We concur with the director that the record lacks Forms W-2 or pay stubs establishing that the 
beneficiary had been paid an annualized wage of $50,000 prior to the filing of the petition. As stated 
above, the petitioner must establish that the beneficiary already received significantly high 
remuneration. 8 C.F.R. 5 204.5@)(3)(ix); see 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg. Comm. 1971). Moreover, it is insufficient to establish only that the alien has earned 
more than the average or prevailing wage locally. The petitioner must establish that the beneficiary 
earns a wage comparable with the top members of his field nationwide. The record lacks evidence 
regarding the remuneration earned by the top sous chefs nationwide. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
While the regulation at 8 C.F.R. 5 214.2(0)(3)(ii) relates to nonirnmigrant petitions, it is instructive that 
it defines the "arts" as including both "culinary arts" and "performing arts." Thus, it would appear that 
culinary arts are not performing arts. Thus, this criterion does not relate to the beneficiary's field. That 
said, counsel does not challenge the director's conclusion that the record does not establish that the 
beneficiary is responsible for his employers' commercial success. We concur with the director. The 
published materials and reviews of the beneficiary's employers name other chefs. The record lacks 
evidence that the beneficiary's employers promote or have promoted their restaurants and menus by 
invoking the beneficiary's name. 
Page 9 
Finally, the conclusion we reach by considering the evidence to meet each criterion separately is 
consistent with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the beneficiary as one of the small percentage who has risen to the very top of the field of 
endeavor. The beneficiary, a sous chef, has earned a local certificate and has received training and 
experience with restaurants that have been favorable reviewed in articles naming other chefs. These 
accomplishments do not appear comparable to the most renowned members of his field, as documented 
in the record. For exampie: one of the beneficiary's references, 
 lists an entire page of 
awards, is the main subject of an article in the "Food" section o 
 Post and is featured 
in a short list of restaurants a food critic "can't get enough of' in The Washington Post Ma 
Another reference,, is featured in The New York Times. A third reference, fm 
is featured in the Washingtonian 's 100 Very Best Restaurants, DC City Dining, The 
Washington Post Magazine and, most notably, the national Bon Appetit. Thus, it appears that the 
highest level of the petitioner's field is far above the level he has attained. 
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 the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as an 
executive sous chef to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field. The evidence 
indicates that the petitioner shows talent as an executive sous chef, but is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field. Therefore, the 
petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.