dismissed EB-1A Case: Kosher Chef

identifying data deleted to 
prevent clea-ly unbvarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBusKA SERVICE CENTER 
LIN 06 226 50017 
 Date: SEP 2 1 2009 
IN RE: 
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 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 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
 103.5(a)(l)(i). 
&DL~c~/ 
r ohn F. Grissom 
p~ctin~ Chief, Administrative Appeals Office 
a Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) 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 that the petitioner had not established the sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary 
ability. More specifically, the director found that the petitioner had failed to demonstrate receipt of a 
major, internationally recognized award, or that he meets at least three of the regulatory criteria at 
8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
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 whlch 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 
individuals seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). 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. 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 
he has sustained national or international acclaim at the very top level. 
This petition, filed on July 26, 2006, seeks to classify the petitioner as an alien with extraordinary 
ability as a kosher chef. On appeal, counsel indicated that an additional brief and evidence in support 
of the appeal would be filed within 30 days. The appeal was filed on June 6,2008. As of this date, 
the AAO has received nothing further. 
In support of the appeal, counsel states: 
[Slince the last submission, [the petitioner] has received an award from the Austrian 
Cook's Association acknowledging his 10 years of achievements in the field. 
Since the last submission, [the petitioner] has become a member of The Food and 
Beverages Association of America. 
[Rlecently, [the petitioner] has received an offer from 
 Executive Sous 
Chef of Walt Disney Swan and Dolphin Resort in Florida, inviting him to come for an 
expense paid trip to Florida. There [the petitioner] received an offer to work for a top 
Walt Disney restaurant plus paid flights and residence in the hotel for fiee. 
Counsel submitted documentary evidence supporting his statements. However, since the events 
occurred after the filing of the petition, we will not consider the evidence to establish the petitioner's 
eligibility. Eligibility must be established at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). A petition cannot be approved at a hture 
date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 
169,175 (Comm'r. 1998). 
Counsel further argues: 
The Service did not take into consideration the fact that in the field of cooking one 
doesn't use the recommendation letters to apply for [sic] new job. To the contrary, the 
owners of the restaurants always know who is working for their "competitors" in the 
field and try to "steal" the best chef-cooks to raise the standard of their place and to get 
new public. In our case, [the petitioner] clearly falls into more than 3 categories of 8 
C.F.R. $ 204.5(h)(3) and is clearly qualified as an alien of extraordinary ability. 
Counsel did not attempt to explain which criteria the petitioner claims to meet. Instead, counsel only 
claims that the petitioner meets more than three criteria. As counsel has failed to specify which of the 
regulatory criteria at 8 C.F.R. $ 204.5(h)(3) the petitioner purportedly meets, we have considered the 
evidence submitted under the criterion which was originally requested at the time the petition was filed. 
If it is counsel's contention that the petitioner meets a particular criterion not addressed in this decision, 
he has never provided such a statement or argument in this regard. 
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, internationally 
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. A petitioner, however, cannot establish eligibility for this 
classification merely by submitting evidence that simply relates to at least three criteria at 8 C.F.R. 
fj 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. A lower evidentiary standard would not be consistent with the regulatory 
definition of "extraordinary ability" as "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. 
fj 204.5(h)(2). 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
At the time of the initial filing of the petition, counsel stated: 
[The petitioner] has received the Red Chaines des Rotisseurs as a member of Austrian 
Cook Association (he was the eighth person in Austria to be honored with this Award; 
only 12 or 13 people have this award in Austria today.) And it's my client's honor and 
obligation to wear this chain at every international cooking contest. 
In May 2004 [The petitioner] was honored the Orange Chaine des Rotisseurs from the 
International Gastronomic Society "Chaine des Rotisseurs ". There few people in the 
world who have this award nowadays, and less than % of them - are cooks worldwide. 
The person who receives the award - is the cook who keeps the highest standards of the 
Gourmet Association. 
None of these assertions by counsel are supported by the documentary evidence contained in the 
record. There is no documentary evidence that the petitioner was the eighth person to receive the 
"Red Chaines des Rotisseurs," or that few people in the world have won the "Orange Chaine des 
Rotisseurs." Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter oflaureano, 19 I&N 
Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The petitioner submitted various pictures of the "Red Chalnes des R8tisseurs" and "Orange Chaine 
des RBtisseurs," including pictures of the petitioner wearing them. The petitioner also submitted the 
bylaws of the "Chaine des R8tisseurs." In denying the petition, the director concluded that the 
ribbons and chains symbolized membership in the organization rather than awards. We agree with 
the director's conclusion. 
A review of the bylaws reflect that ribbons are earned based on occupational duties and length of 
service. For example, a "r8tisseur/grillardin" earns a silver medal and chain with no ribbon when he 
or she is a young professional who works with a turning spitlgrill. An "officier chef 
Page 5 
rotisseur/grillardin" earns a gold medal and chain on an orange ribbon when he or she has been 
promoted from "chef rotisseurlgrillardin" after five years of membership and outstanding service to 
his bailliage. 
The ribbons reflect forms of rank rather than nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. Furthermore, there is no evidence showing that 
petitioner's ribbons had a significant level of recognition beyond the presenting organization. The 
plain language of the regulatory criterion at 8 C.F.R. fj 204.5(h)(3)(i) specifically requires that the 
petitioner's awards be nationally or internationally recognized in the field of endeavor and it is his 
burden to establish every element of this criterion. In this case, there is no evidence demonstrating 
that the petitioner's ribbons are tantamount to nationally or internationally recognized prizes or 
awards for excellence in the petitioner's field of endeavor. 
Accordingly, the petitioner has not established that he meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
At the time of the initial filing of the petition, counsel stated that the petitioner met this criterion by 
the petitioner's membership in the following organizations: 
1. Austrian Cooks Association (Verband der Koche ~sterreichs, VKO) - since July 
1998; and 
2. Chaines des R6tisseurs - since February 2004. 
The petitioner submitted the following: 
1. Letter from -1 of the Austrian Cooks Association, dated 
February 21, 2008, stating that the petitioner has been a member of the Austrian 
Cooks Association from June 16, 1998; and 
2. Letter from - of the Austrian Cooks Association, dated February 21, 
2008, stating that the petitioner has been a member of Chaines des Rbtisseurs of 
Austria from 2004. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
The petitioner has failed to submit any documentary evidence establishing that membership in the 
Austrian Cooks Association requires outstanding achievement as an essential condition for 
admission to membership. 
As noted previously, the petitioner submitted the bylaws for Chaines des R6tisseurs. The 
requirements for membership are summarized below: 
1. Applications by invitation only; 
2. Must be a financially responsible adult of good moral and ethical character and 
reputation; and 
3. Must submit an application, which is countersigned by two sponsors who are 
members in good standing. 
While membership is by invitation only, the only other conditions are that a person "must be a 
financially responsible adult of good moral and ethical character and reputation" and the submission 
of a countersigned application. These conditions fail to establish that outstanding achievement in the 
culinary field is an essential condition for admission to membership. 
In this case, there is no evidence showing that the petitioner holds membership in an association 
requiring outstanding achievements of its members, as judged by recognized national or 
international experts in his field or an allied one. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of the alien 's participation, either individually or on a panel, as a judge of the 
work of others in the same or an alliedfield of specflcation for which classzfication is 
sought. 
At the time of the initial filing of the petition, counsel stated that the petitioner met this criterion by 
the petitioner's participation in training the Austrian National Finalists at a culinary contest in 
Calgary, Canada in 2004 and Hamilton Beach, Bermuda. Counsel firther stated: 
By being a chef cook, one of [the petitioner's] primary responsibility is judging the 
work of the cooks who are working in the kitchen; both on the basis of their artistic 
presentation as well as their scientific combination of various tastes and textures. 
The petitioner submitted a photograph of an orange ribbon with a handwritten caption stating that it 
was a "[Bladge from Canada 2004 for training the Austrian National Finalists at the Culinary 
Contest in Calgary, Canada." 
No documentary evidence was submitted supporting counsel's claim that the petitioner participated in 
the training of Austrian National Finalists in Hamilton Beach, Bermuda. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at n.2; Matter of Ramirez-Sanchez, 17 I&N 
Dec. at 506. 
Nonetheless, the training of finalists for a culinary contest, either in Canada or Bermuda, is not the 
judging of the work of others in the same or an allied field of specification as required at 8 C.F.R. 
8 204.5(h)(3)(iv). Training entails providing vocational and technical instruction while judging 
entails reviewing and awarding the work of others. 
Furthermore, counsel claims that because the petitioner's job duties as a chef cook are to judge the work 
of other cooks in the kitchen, he therefore, qualifies under this criterion. The responsibility of 
overseeing other cooks in the kitchen is part of the petitioner's daily responsibilities. The mere nature of 
evaluating other cooks in the kitchen as part of a daily and routine occupational responsibility does not 
rise to the level of acclaim required for this highly restrictive classification. 
The regulation at 8 C.F.R. 8 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." Evidence 
of the petitioner's participation as a judge must be evaluated in terms of these requirements. The 
weight given to evidence submitted to fulfill the criterion at 8 C.F.R. 5 204.5(h)(3)(iv), therefore, 
depends on the extent to which such evidence demonstrates, reflects, or is consistent with sustained 
national or international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "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. 8 204.5(h)(2). 
 For example, evaluating the work of 
accomplished chefs as a member on a national panel of experts is of far greater probative value than 
evaluating the work of culinary students. 
Accordingly, the petitioner has not established 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. 
At the time of the initial filing of the petition, counsel stated that the petitioner performed a leading 
role in the following establishments: 
1. Austrian International Airport from June 1, 1996 to August 31, 1996, summer 
trainee and March 2, 1998 to August 3 1, 1998, cook; 
2. Maxim's de Paris in Paris, France from June 1, 1999 to December 31, 1999, 
assistant chef cook; 
3. Ambassador Hotel in Paris France from November 4, 1999 to May 21, 1999, chef 
of the kitchen; 
4. Royal Beach Hotel in North Beach Eilat, Israel from February 2000 to June 2002, 
chef tournat; 
. Page 8 
5. MS Berlin of Peter Deilmann Cruises from July 2,2002 to July 15,2002, cook; 
6. Seehof Hotel and Restaurant in Unteruhldingen, Germany from August 2002 to 
May 2003, sous chef and trainer of staff; and 
7. Hotel Imperial in Vienna, Austria from August 25, 2003 to October 24, 2004, 
assistant chef cook; 
The petitioner submitted job verification and recommendation letters for each of the above. The job 
letters from Maxim's de Paris, Ambassador Hotel, and MS Berlin simply confirmed the petitioner's 
dates of employment and job title but provided no specific details regarding the beneficiary's duties 
or position. 
Among his tasks were producing hot and cold meals as well as deserts [sic]. [The 
petitioner] was characterized by his commitment and trustworthiness; he fulfilled the 
tasks given him with much care and to our fullest satisfaction. He was equally liked and 
recognized by colleagues and superiors. 
[The petitioner] proved his high professional knowledge and high standard in all our 
outlets. This includes besides the variety and presentation of our dishes also hygiene 
standards, control of food cost and educating the cooks, which worked under his 
supervision. was also in charge of the "La Cucina" - Italian style non-kosher 
restaurant for a period of four month [sic]. 
On banquets and out side [sic] catering up to 1200 people he took a big part of 
organizing, producing and serving. 
[The petitioner] is a very good partner - a man you can trust. [The petitioner] possesses 
a pleasant disposition and was well like [sic] by both his co-workers and superiors. 
stated: 
[The petitioner] field of occupation was to take orders, price comparisons, inventory 
orders, and training of the personnel. He showed himself from the beginning as an 
outstanding co-worker, who was flexible and honest. 
[The petitioner] is a very considerate worker who will not neglect anything to learn 
more of his work. Therefore he utilizes his cooking experience and implements that in 
the work. He carried out his tasks to our fullest satisfaction. 
[The petitioner] is characterized by his readiness to help; he always stepped in when 
work was needed. We are fully satisfied that carried out all our requests. 
In this position [the petitioner] was substantially sharing the responsibility and the 
guarantee of the outcome of our sauces. In this position he also was responsible for the 
organizing of the Cafe Imperial's Banquettes and Catering Services. His unusually high 
competence and his active participation were equated to the level Chef-Cook. [The 
petitioner] acted fully responsible and was always greatly contributing to the team's 
achievements. [The petitioner] became an important organizer in our team by his high- 
quality cooperation; he acted extremely exemplary; [the petitioner] significantly 
contributed to the reputation for the Austrian kitchen and the Hotel Imperial by 
participating in the organization of the "Austrian Weeks" in our sister hotel in Dubai. 
At issue for ths criterion are the position the petitioner was selected to fill and the reputation of the 
entity that selected him. In other words, the position must be of such significance that the alien's 
selection to fill the position, in and of itself, is indicative of or consistent with national or international 
acclaim. 
Whlle the job verification and recommendation letters praise the petitioner in his employment history as 
a chef, the letters do not demonstrate that he performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. The record lacks information regarding the specific 
nature of the petitioner's roles and how those roles differentiated him fiom the other members of the 
organizations. We note that several of the positions were either "trainee" or "assistant chef' positions. 
It is unclear how these roles are of a leading or critical nature to the particular establishment. Further, 
there is no evidence showing that the organizations for which the petitioner served had a distinguished 
reputation. In this case, the documentation submitted by the petitioner does not establish that he was 
responsible for the success or standing of the organizations to whlch he was appointed to a degree 
consistent with the meaning of "leading or critical role" and indicative of sustained national or 
international acclaim. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salaiy or other signiJicantly high 
remuneration for services, in relation to others in the$eld. 
At the time of the initial filing of the petition, counsel contended that the petitioner earned a salary 
of: 
1. $1,600 (USD) per month at the Royal Beach Hotel, which was "almost double 
salary than any chef cook from Israel would get"; 
2. $2,273 (USD) "with today's exchange rate" per month at MS Berlin of Peter 
Deilmann Cruises, which "was one of the highest salaries paid on the ship"; 
3. $1,768 (USD) per month at Hotel Imperial, which "is about 113 more than the 
highest salary in the kitchen"; 
4. $1,400 (USD) per month at the Austrian International Airport; and 
5. $1,700 (USD) per month at Maxim's de Paris. 
There is no documentary evidence in the record stating the salary of the petitioner in any of the above 
establishments. Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; 
Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. Further, the plain language of this regulatory 
criterion requires the petitioner to submit evidence showing that he has commanded a high salary "in 
relation to others in the field." The petitioner offers no basis for comparison showing that his 
compensation was significantly high in relation to others in hls field. 
Accordingly, the petitioner has not established that he meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate his 
receipt of a major internationally recognized award, or that he meets at least three of the criteria that 
must be satisfied to establish the national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. 5 204.5(h)(3). 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 petitioner as one of the small percentage who 
has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). 
Review of the record does not establish that the petitioner has distinguished himself 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 is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A)(i) 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.