dismissed EB-1A Case: Pastry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 06, 2024 In Re: 32607385 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Exceptional Ability) 
The Petitioner, a pastry chef, seeks classification as an individual of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A) . This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the initial evidence requirements for the classification by submitting 
evidence of a one-time achievement or meeting at least three of the evidentiary criteria at 
8 C.F.R. § 204.5(h)(3). The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility as an individual of extraordinary ability, a petitioner (or anyone on the 
petitioner's behalf) must establish that they: 
• Have extraordinary ability in the sciences, arts, education, business, or athletics; 
• Seek to enter the United States to continue work in their area of extraordinary ability; 
and that 
• Their entry into the United States will prospectively substantially benefit the United 
States. 
Extraordinary ability must be demonstrated by evidence of sustained national or international acclaim 
as well as extensive documentation that their achievements have been recognized in the field. Section 
203(b)(l) of the Act. 
The implementing regulation further states that 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." It also 
sets forth a multi-part analysis. A petitioner can demonstrate international recognition of their 
achievements in the field through a one-time achievement (that is, a major, internationally recognized 
award). If such evidence is unavailable, then they must alternatively provide evidence that meets at 
least three of the ten listed criteria, which call for evidence about other awards they may have received, 
published material about them in qualifying media, and their authorship of scholarly articles, among 
other types of evidence. 8 C.F.R. §§ 204.5(h)(2),(3). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination, assessing whether the record shows that the 
individual possesses the acclaim and recognition required for this highly exclusive immigrant visa 
classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review 
where the documentation is first counted and then, if fulfilling the required number of criteria, 
considered in the context of a final merits determination); see also Visinscaia v. Beers, 4 F. Supp. 3d 
126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is a pastry chef who intends to continue working as such in the United States. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that they received a major, internationally 
recognized award, they must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met only the evidentiary criterion 
at 8 C.F.R. § 204.5(h)(3)(iv), relating to judging. On appeal, the Petitioner asserts that they met six 
other evidentiary criteria. 1 After reviewing the evidence in the record, we conclude that the Petitioner 
does not meet at least three of the evidentiary criteria, and therefore does not meet the initial evidence 
requirements for this classification. While we may not discuss every document submitted, we have 
reviewed and considered each one. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions ofmajor sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
To satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that they not only 
made original contributions, but that those contributions have been of major significance in the field. 
For example, a Petitioner may show that the contributions have been widely implemented throughout 
the field, have remarkably impacted or influenced the field, or have otherwise risen to a level of major 
significance. See Visinscaia, 4 F. Supp. 3d at 134-35. 
1 Throughout this proceeding, the Petitioner did not assert, nor does the record show that he met the criteria at 
8 C.F.R. § 204.5(h)(3)(ii), (vii), or (x), relating to membership, artistic display, or commercial success. We consider these 
issues to be waived. See, e.g., Matter ofM-A-S-, 24 l&N Dec. 762, 767 n.2 (BIA 2009). 
2 
As a preliminary matter, the Petitioner contends on appeal that the Director acted "in violation of the 
due process oflaw" in finding him ineligible for this and other criteria at 8 C.F.R. § 204.5(h)(3). But 
he does not identify the due process rights that are implicated in the adjudication of the Petitioner's 
extraordinary ability immigrant petition. See Lyng v. Payne, 476 U.S. 926, 942 (1986) (stating that 
"[w]e have never held that applicants for benefits ... have a legitimate claim of entitlement protected 
by the Due Process Clause of the Fifth or Fourteenth Amendment."); see also Azizi v. Thornburgh, 
908 F .2d 1130, 1134 (2d Cir. 1990) ( explaining that the Fifth Amendment protects against the 
deprivation without due process of property rights granted to noncitizens; however, petitioners do not 
have an inherent property right in an immigrant visa). 
We acknowledge the Petitioner has incorporated several pages of narrative into the appeal brief from 
his response to the Director's request for evidence (RFE) that discuss his work accomplishments. He 
generally asserts that the Director erred in determining that the evidence was insufficient to meet this 
criterion. However, based on our de novo review of the evidence and for the following reasons, we 
agree with the Director that the record is insufficient to establish that the Petitioner meets this criterion. 
The Director denied the petition in part, acknowledging that the Petitioner submitted several letters 
from employers and colleagues that generally praised his work, but concluded the letters were 
insufficient to show that he meets this criterion. On appeal, the Petitioner contends the Director did 
not adequately consider this evidence, asserting: 
Recognized experts in the confectionary and chocolate-making industry, both 
nationally and internationally, have acknowledged the significance of [the Petitioner's] 
methodology and pastry paste. His innovative contributions have not only expanded 
the possibilities within the field but have also elevated the artistry and quality of 
confectionery and chocolate creations, making him a trailblazer in this specialized 
domain. 
The Director explained in his decision that the letters fell short in substantiating the Petitioner's 
assertion that he had made contributions of major significance to the confectionery field. For instance, 
he took note that the letters authored by individuals employed by ___________
I I did not include the authors' contact information and thus did not meet the requirements for 
such letters at 8 C.F.R. § 204.5(g)(l ). He also observed that the authors used identical language to 
vaguely describe the Petitioner's accomplishments and did not mention the Petitioner by name. 
Identical language in letters "suggests that the letters were all prepared by the same person and calls 
into question the persuasive value of the letters' content." Hamal v. US. Dep 't ofHomeland Security, 
No. 19-2534, slip op. at 8, n.3 (D.D.C. June 8, 2021). We agree with the Director that these letters 
which simply offer identical generalized statements are of little probative value to the matter here. 
Matter ofChawathe, 25 I&N Dec. at 376. 
Other letters from the Petitioner's former employers offer insufficient support to the Petitioner's 
claims that he has made major significant contributions to the field. The authors discuss the ways in 
which he benefited their business operations, note that he has talent, and generally assert that he is a 
reliable, respectful employee. For instance, in the letter from a former employer, 
(F-), the owner indicates that the Petitioner was hired in 2009 as a baker-confectioner and was 
promoted in 2010 to "sous-chef of the confectionery shop," where he "effectively led three 
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subordinates." F- states that the Petitioner "competently developed and introduced new desserts, 
bread, and custom cakes into the restaurant menu," and "was never late for work, always kept 
confidentiality, did not conflict with other employees, and showed respect to others." But F- did not 
discuss any major significant contributions that the Petitioner has already made to the field. 
See Amin v. Mayorkas, 24 F.4th 383, 393-394 (5th Cir. 2022) (finding that contributions which were 
not adopted beyond a petitioner's employer do not meet this criterion). As explained by the Director, 
the letter authors describe the Petitioner's work in a positive light, but do not suggest that his work has 
remarkably impacted or influenced the confectionery field. In evaluating the evidence, the truth is to 
be determined not by the quantity of evidence alone but by its quality. Matter of Chawathe, supra. 
This criterion has not been met. 
Evidence that the individual has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
For the purposes of this criterion, a leading role should be apparent by its position in the overall 
organizational hierarchy and through the role's matching duties. A critical role should be apparent 
from the Petitioner's impact on the organization or the establishment's activities. The Petitioner's 
performance in this role should establish whether the role was critical for the organization or 
establishment. Additionally, the organizations or establishments must be marked by emmence, 
distinction, excellence, or a similar reputation. 
The Petitioner asserts that he held a leading or critical role in a company that he owned abroad, M-, as 
its "founder and CEO." The Director requested documentary evidence to establish the leading and 
critical nature of the Petitioner's work with M-, along with probative evidence to show that M- enjoys 
a distinguished reputation. The Director determined that the Petitioner was ineligible for this criterion, 
because though the Petitioner asserted that M- "is one of the most preeminent and successful 
organizations in confectionery craftsmanship in Russia," the record lacked documentary evidence to 
substantiate the Petitioner's assertions. The Director determined, in part, that the Petitioner did not 
meet this criterion because he did not provide documentary evidence about M- in the RFE response to 
show that M- has a distinguished reputation. "Failure to submit requested evidence which precludes 
a material line of inquiry shall be grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(14). 
In the RFE response, the Petitioner provided a letter from L-, CTO of M-, who indicated that he held 
general manager and pastry chef positions while employed there. The Director took note of the 
inconsistencies between the Petitioner's claims that he was founder and CEO of M-, and the 
information provided by L- in her letter submitted in the RFE response. He advised the Petitioner that 
he must resolve this inconsistency and ambiguity in the record with independent, objective evidence 
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On appeal the Petitioner does not address the Director's concerns regarding the inconsistencies in the 
record regarding his roles and responsibilities while employed abroad with M-. Rather, on appeal the 
Petitioner incorporates narrative discussing verbatim his accomplishments in the field from his 
response to the Director's RFE, and generally asserts that the Director erred in determining the 
evidence was insufficient to meet this criterion. The Petitioner has not supported his appeal by 
specifically identifying a law or policy that the Director may have incorrectly applied in determining 
that the Petitioner is ineligible for this criterion. This criterion is not met. 
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Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
To satisfy this criterion, the Petitioner must demonstrate that he commanded a high salary or other 
significantly high remuneration for services in relation to others in his field. See Matter ofPrice, 20 
I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering professional golfer's earnings versus other 
PGA Tour golfers); see also Crimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) ( considering NHL 
enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) 
(comparing salary of NHL defensive player to salary of other NHL defensemen). 
The Petitioner submitted a certificate of income and taxation data to demonstrate his income in 2018, 
as well as some contractual documentation as evidence of the services that M- provided and several 
payments to M- for services rendered. He submitted information about the average salary for a pastry 
chef in the city where he was employed abroad, asserting that his compensation in that year was high. 
The Director determined that a comparison of the Petitioner's financial documentation with average 
salary statistics for pastry chefs working in that locale was insufficient to show that he has commanded 
a high salary or significantly high remuneration in relation to others in his field, noting that the 
Petitioner had not provided sufficient comparative information about the range of compensation 
earned by others in his field. 
On appeal the Petitioner does not address the Director's concerns regarding the lack of sufficient 
comparative salary data in the record. Instead, he offers the verbatim narrative that he included in his 
RFE response, which the Director considered in denying the petition. While the Petitioner generally 
asserts that the Director erred in concluding that he had not met the plain language of this criterion, he 
does not specifically identify a law or policy that the Director may have incorrectly applied in 
determining that the Petitioner is ineligible for this criterion. We agree that this criterion has not been 
met. 
Evidence of the alien's authorship ofscholarly articles in the field, in professional or 
major trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
This criterion contains multiple evidentiary elements the Petitioner must satisfy through the 
submission of evidence. The first element is that the Petitioner is an author of scholarly articles in the 
field in which he intends to engage once admitted to the United States as a lawful permanent resident. 
We consider these articles to fall within two distinct areas. 
One relative area is within the academic arena in which a scholarly article reports on original research, 
experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is 
often affiliated with a college, university, or research institution. In general, it should have footnotes, 
endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the 
concepts expressed in the article. The next area lies outside of the academic arena in which a scholarly 
article should be written for learned persons in that field. "Learned" is defined as "having or 
demonstrating profound knowledge or scholarship." Learned persons include all persons having 
profound knowledge of a field. See generally 6 USCIS Policy Manual B. l, 
https://www.uscis.gov/policymanual. 
5 
The second evidentiary element this criterion requires is that the scholarly articles appear in one of the 
following: (1) a professional publication, (2) a major trade publication, or (3) in a form of major 
media. Relevant factors a petitioner should demonstrate include the intended audience (for 
professional and major trade publications) and the relative circulation, readership, or viewership are 
high relative to similar publications (for major trade publications and other major media). See 
generally 6 USCIS Policy Manual, supra, at B. l. The Petitioner must submit evidence satisfying each 
of these elements to meet the plain language requirements of this criterion. 
The Petitioner does not assert nor does the record establish that he has published an academic scholarly 
article which reports on original research, experimentation, or philosophical discourse. The Petitioner 
initially submitted published material (that mostly constituted the Petitioner's recipes for baked 
goods), which did not adequately illustrate that they were scholarly articles, or that they were published 
in professional or major trade publications or other major media. 
In response to the Director's RFE, the Petitioner pointed to his "BBQ Cake Tutorial" which was 
published in C- magazine, a periodical which focuses on confectionery creations in 2019. The tutorial 
provided step-by-step instructions to make and decorate a barbeque-themed cake. The Petitioner also 
provided pages from C-' s website which indicate that it publishes a monthly printed magazine and 
offers digital subscriptions to its content. The Director determined that this tutorial did not meet the 
plain language of this criterion as a scholarly article for learned persons in the field. 
On appeal, the Petitioner asserts: 
USCIS' requirement for documentation to establish publication in professional or 
major trade publications or other major media is excessively rigid. [C-] magazine, 
where [the Petitioner's] work was featured, is a widely recognized publication in the 
confectionery industry meeting the criteria for a major media platform. 
We have reviewed the information provided about C- in the RFE response. While this material 
suggests that C- enjoys an international readership, the Petitioner has not provided comparative 
circulation information about C-'s publications, either on-line or in print, that would show that this 
magazine meets that plain language of this criterion regarding its standing as a media outlet. 
Additionally, the Petitioner has not substantiated that C-'s published materials are written for learned 
persons associated with the confectionery industry or for readership by confectionary enthusiasts in 
the general populace. We agree with the Director that this criterion has not been met. 
B. Final Merits Determination 
The Petitioner has not established that he meets at least three of the evidentiary criteria, and thus does 
not meet the initial evidentiary requirement for classification as an individual of extraordinary ability. 
Although he claims eligibility for two additional criteria on appeal, relating to awards at 8 C.F.R. § 
204.5(h)(3)(i) and published material about the Petitioner at 8 C.F.R. § 204.5(h)(3)(iii), we need not 
reach these additional grounds. As the Petitioner cannot fulfill the initial evidentiary requirement of 
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three criteria under 8 C.F.R. § 204.5(h)(3), we reserve these issues. 2 Accordingly, we need not provide 
the type of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we 
advise that we have reviewed the record in the aggregate, concluding that it does not support a finding 
that the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for those progressing toward the top. USCIS has long held that 
even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter ofPrice, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of their work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and that they are one of the small percentage who have 
risen to the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F.R. § 
204.5(h)(2). 
ORDER: The appeal is dismissed. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
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