dismissed EB-1A Case: Food Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
Y Services 
FILE: WAC 03 052 5 1232 Office: CALIFORNIA SERVICE CENTER Date: 
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. 9 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
ecided your case. Any further inquiry must be made to that office. 
;t?' Robert P. Wiemann, Director 
' Administrative Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office 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 1 153(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 qualifL for classification as an alien of extraordinary ability. 
On appeal, counsel asserts that the response to the director's request for additional evidence (RFE) amended the 
petition to change the petitioner from the beneficiarylself-petitioner to her current employer. Counsel cites no 
legal authority that would allow a post-filing amendment to change the petitioner. Thus, the director did not err 
in declining to amend the petition as requested. The classification sought, however, allows an alien to self- 
petition and does not require a job offer other than evidence that the alien seeks to continue working in her area 
of expertise. The director's decision denying the petition was based on the petitioner's failure to demonstrate 
national or international acclaim. Whether we consider the petition to be filed by the alien or her employer is 
irrelevant to that determination. 
Counsel's assertion that the director overlooked the documentation submitted in response to the RFE will be 
considered below. We note, however, that the director identified several specific deficiencies in the 
documentation submitted. Counsel makes no attempt to address any of these concerns and the petitioner does 
not submit any new documentation. 
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. 9 204.5(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. 
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5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner 
must show that she has sustained national or international acclaim at the very top level. 
As stated on the Form 1-140 petition, Part 6, this petition seeks to classify the petitioner as an alien with 
extraordinary ability as a food scientist. The petitioner has subsequently submitted a job offer as a Dietary 
Service Supervisor. The duties for this position are listed as follows: 
Direct activities of chefs, nursing aids and staff in a 127-resident skilled nursing facility. 
Prepare and establish menus following prescribed guidelines and health standards fro 
approximately 450 meals served pr day. Administer menu formulation, food preparation and 
service following health and safety standards. Assist chefs in testing and preparing nutritious 
food using alternate ingredients for nursing residents and staff. Order and buy foodstuffs and 
keep inventory. Establish policies and procedures and translsupervises dietetic staff of 15 
employees. Has authority to promote, reprimand, and terminate dietetic staff. 
These duties reveal that the petitioner will be relying on established nutrition guidelines and will not be involved 
in setting or researching such guidelines. As such, this intended employment appears to be a material change 
from the initial proposed employment as a "food scientist." A petitioner may not make material changes to a 
petition that has already been filed. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm. 1998). While indirectly 
related to the petitioner's area of expertise, discussed below, the petitioner has not established that the above 
duties are within her area of expertise. For example, the petitioner appears to have obtained an associate's 
degree in dietary health care to qualify for this job, suggesting her expertise gained in India and on which this 
petition is based, is not sufficiently related to her current job. 
The regulation at 8 C.F.R. 3 204.5(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 that, she claims, meets the following criteria.' 
Documentation of the alien S receipt of lesser nationally or internationally recognizedprizes or awards for 
excellence in the field of endeavor. 
Both prior counsel and counsel assert that the petitioner's academic degrees serve to meet this criterion. The 
director concluded that academic awards are not nationally or internationally recognized as they are limited to 
the school or institution issuing the award. The director further concluded that degrees are not awards for 
excellence, but credentials. Counsel does not contest these conclusions on appeal. We concur with the 
director's conclusion and analysis. Degrees, even advanced degrees from prestigious institutions, are the 
expected outcome upon completion of specified coursework. They do not fit the definition of "prizes" or 
"awards." 
I The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
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Documentation of the alien's membership in associations in the field for which classzjication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields. 
In response to the director's WE, counsel asserted that the petitioner was a "recognized member" of the 
National Registry of Food Managers. The petitioner submitted evidence that she passed the National Certified 
Professional Food Manager examination and that NSF International has certified her as a Food Manager. While 
the petitioner submitted information that NSF International has an international reputation, the record contains 
no evidence that designation as a Food Manager requires anything other than passage of the examination. 
The director concluded that the petitioner had not established that NSF International had "set rules for 
membership including rigid standards to join." Once again, counsel does not address this concern on appeal and 
the petitioner does not submit any additional information about NSF International certification. 
The issue is not NSF International's reputation, but whether the petitioner's certification qualifies as a 
"membership" and whether certification requires outstanding achievements as judged by national or 
international experts in the field. The record is not persuasive that certification by NSF International is a 
"membership" in an organization. Rather, it appears more akin to a license. Moreover, passage of a qualifying 
examination, even a competitive examination, is not an outstanding achievement as judged by national or 
international experts in the field. Thus, we concur with the director's conclusion regarding 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 classiJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
Prior counsel did not initially claim that the petitioner meets this criterion, although the petitioner did initially 
submit a summary of her thesis purportedly published in 7%e Times of India, reviews of her cookbooks and a 
published recipe credited to the petitioner. In response to the director's WE, counsel asserted that this evidence 
meets this criterion. 
The director concluded that the reviews were not "about" the petitioner. The director also included a lengthy 
discussion of citations in scientific literature that does not appear to relate to the petitioner's case. On appeal, 
counsel does not address this concern. The copy of the summary of the petitioner's thesis in the record includes 
only the article. The publication in which it allegedly appeared, The Times of India, is handwritten on the copy. 
The petitioner has not established that the summary of her thesis appeared in a nationally circulated section of 
The Times of hdia. The remaining materials did not appear in a nationally circulated newspaper. Thus, we 
concur with the director that the petitioner does not meet this criterion. 
Evidence qf the alien's participation, either individually or on apanel, as a judge of the work of others in the 
same or an alliedfield of specijication for which classifkation is sought. 
In 1995, the petitioner judged the "Paneer Cooking Contests" sponsored by Nandini Milk Products, 
headquartered in Bangalore. In 1996, the petitioner apparently judged the "Jaycees Recipe Queen Contest" 
sponsored by NIRLEP in Bangalore. While the petitioner submitted the acceptance of her offer to judge the 
contest sponsored by Nandini, the only evidence regarding the NIRLEP contest consists of photographs of the 
petitioner at the competition behind a "judge" placard. 
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The director concluded that the petitioner had not established that inclusion in the judging process was limited 
to those with extraordinary ability who had achieved national or international acclaim. The appeal does not 
address this criterion. 
We phrase our concern somewhat differently than the director. At issue is whether the judging responsibilities 
are indicative of or consistent with national or international acclaim. Such an analysis addresses the court's 
concern in Buletini v. INS, 860 0. Supp. 1222 (E.D. Mich. 1994) that requiring evidence that judges are selected 
based on extraordinary ability is too circular.* 
While the companies for which the petitioner judged competitions appear to have national reputations, they are 
both based in Bangalore, where the petitioner resides. Thus, we are not persuaded that these judging 
responsibilities are indicative of any recognition outside of Bangalore. The record lacks evidence that the 
petitioner served on a panel in Bangalore that included judges from outside Bangalore or on panels in other 
regions. 
Evidence of the alien S original scientific, scholarly, artistic, athletic, or business-related contributions of 
major signiJicance in the field. 
In response to the director's RFE, counsel asserted that the petitioner's cookbooks, presentation at a scientific 
conference and "numerous" newspaper articles serve to meet this criterion. The director noted that conference 
presentations are inherent to the petitioner's field and that all of the reference letters are from the petitioner's 
immediate circle of colleagues. 
The petitioner's thesis and news articles are no doubt of value. Any Ph.D. thesis, however, in order to be 
accepted for graduation, must offer new and useful information to the pool of knowledge. It does not follow 
that every Ph.D. candidate who performs original research that adds to the general pool of knowledge has 
made a contribution of major significance. While we acknowledge that The Times of India covered the 
petitioner's thesis, the record lacks evidence that the petitioner's thesis has impacted the field of nutrition as 
a whole in India. Specifically, there is no evidence that any governmental or scientific entity in India has 
adopted the petitioner's work into its nutritional guidelines. Finally, not every health article in a local paper 
is a contribution of major significance to the field of nutrition as a whole. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. 
The record contains the petitioner's thesis, four articles authored by the petitioner and her Ph.D. mentor in the 
Deccan Herald, and nine cookbooks. As stated above, the petitioner's thesis was summarized in an article in 
The Times of India. Prior counsel asserted that the petitioner's thesis was published in Clinical Nutrition and 
the record reflects that the petitioner presented her thesis at the 7th World Congress on Clinical Nutrition in 
New Delhi and another conference. 
2 While the Administrative Appeals Office (AAO) is not bound to follow the published decision of a United 
States district court, see Matter of K-S-, 20 I&N Dec. 715 (BIA 1993), the reasoning underlying a district 
judge's decision will be given due consideration when it is properly before the AAO. Id. at 719. 
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The director concluded that authorship of articles in furtherance of a degree program is not indicative of national 
or international acclaim and that the record lacked evidence that the petitioner's national impact exceeded that 
of others in the field. 
The evidence submitted to meet a criterion must be evaluated as to whether it is indicative of or consistent with 
national acclaim. Authorship of original work is expected of Ph.D. students. The record lacks evidence that the 
petitioner's thesis was published as claimed, although the petitioner presented this work at two conferences. As 
stated above, the record lacks evidence that the petitioner's thesis has proven influential. The petitioner's 
newspaper articles appeared in a local publication. The materials about the Deccan Herald do not indicate that 
it has a national circulation. 
Evidence of the display of the alien S work in the field at artistic exhibitions or showcases. 
Prior counsel and counsel have both asserted that the petitioner's cookbooks, presentation of her thesis and 
newspaper articles serve to meet this criterion. The director noted the lack of evidence that the books were 
widely distributed or sold well in comparison to other cookbooks. On appeal, the petitioner does not submit 
evidence regarding the sales of her books. 
This criterion is applicable to visual artists. We cannot conclude that a nutritionist or cook is a visual artist. 
Moreover, scientific conferences, cookbooks, and newspapers are not artistic exhibitions or showcases. Thus, 
the evidence purportedly relating to this criterion does not actually apply to it. Nor do we find these 
presentations and publications to be comparable evidence to meet this criterion pursuant to 8 C.F.R. 
9 204.5(h)(4). The regulations include a scholarly articles criterion, set forth at 8 C.F.R. 5 204.5(h)(3)(vi) and 
discussed above. It is not persuasive that evidence relating to that criterion but insufficient to meet that criterion 
would be comparable evidence sufficient to meet this criterion. While the cookbooks are not "scholarly," we do 
not find that publication of books of undocumented popularity is comparable to the type of display at exclusive 
artistic showcases contemplated by this criterion. Moreover, even if the record did contain evidence that the 
petitioner enjoyed commercial success through the sale of her cookbooks, such evidence would be comparable 
evidence for the commercial success as a performing artist criterion set forth at 8 C.F.R. 5 204.5(h)(3)(x) and 
discussed below. Thus, we find that the petitioner has not established that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or establi.shments that 
have a distinguished reputation. 
In response to the director's RFE, counsel asserted that in 1983 the petitioner founded the Sangeeta Niketan 
Cookery School, which she has managed and operated ever since. In addition to the 30 culinary classes offered, 
the school presented a workshop on the development of baby foods. The director failed to discuss this claim. 
The record adequately establishes that the petitioner has played a leading role for the school. Local news 
coverage, however, is not evidence of the school's distinguished reputation nationally. The record lacks 
evidence in support of prior counsel's assertion that the school attracts students internationally other than the 
petitioner's self-sewing assertion at the beginning of one of her own cookbooks. Without additional evidence of 
the school's national reputation, we cannot conclude that the petitioner 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. 
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Admittedly, this criterion is not applicable to authors. We would accept, however, evidence of the 
commercial success of the petitioner's books as comparable evidence for this criterion under 204.5(h)(4). 
While prior counsel asserts that the petitioner's cookbooks are bestsellers thwrecord contains no evidence to 
support that claim. The evidence that one or two of her cookbooks have$&flreprinted is not evidence that 
they were bestsellers. The assertions of counsel do not cony evidence. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (BIA 1988); Mutter of Ramirez-Sanchez, 17 &N Dec. 503, 506 (BIA 1980). While the 
director specifically noted that the record lacked evidence that the petitioner's cookbooks are bestsellers, the 
petitioner does not submit any evidence to address this deficiency on appeal. Thus, the petitioner has not 
submitted comparable evidence to meet this criterion. 
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 herself as a food scientist 
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 indicates that the petitioner shows talent 
as a food scientist, but is not persuasive that the petitioner's achievements set her significantly above almost all 
others in her 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. 4 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.