dismissed EB-1A Case: Winemaking

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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 1 153(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 a 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. 9 103.5(a)(l)(i). 
Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classifl the beneficiary as an "alien of extraordinary ability," pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 11 53(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 submits a brief. For the reasons discussed below, we uphold the director's ultimate 
conclusion that the petitioner has not established the beneficiary's eligibility for the benefit sought. 
Specifically, for the reasons discussed in detail below, while we concur with counsel's assertion, raised 
for the first time on appeal, that the beneficiary plays a leading or critical role for a winery with a 
distinguished reputation, the petitioner has not demonstrated that the beneficiary meets any of the other 
regulatory criteria for the classification sought. 
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 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, 60898-9 (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. § 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. 8 204,5(h)(3). The relevant criteria will be addressed below. 
Page 3 
It should be reiterated, however, that the petitioner must show that the beneficiary has sustained 
national or international acclaim at the very top level. 
This petition seeks to classifl the beneficiary as an alien with extraordinary ability as a master 
winemaker. 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, 
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 qualifl as an alien of extraordinary ability. The petitioner has submitted evidence that is 
claimed to meet the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in theJield of endeavor. 
Initially, the petitioner submitted a self-serving list of awards won by its wines on its own letterhead 
and competitions results posted on its own website. In response to the director's request for additional 
evidence, the petitioner submitted competition results posted at www.uncorknework.com. The results 
reflect that in 2002, one of the petitioner's wines received the Chairman's Award and a gold medal at 
the Riverside International Wine Competition. An electronic mail message from the competition's 
chairman, - indicates that the competition averages about 2,400 wines and awards 
approximately 58 
 of those wines medals.  he website &.uncorknework.com also reflects 
that in 2002, one of the petitioner's wines won "Double Gold" at the San Francisco International 
competition. Results posted at http://fingerlakeswinegazette.com reflect that in 2006, three of the 
petitioner's wines won silver or double gold medals at the International Eastern Wine Competition in 
Coming. In April 2007, before the filing date, one of the petitioner's wines won a Gold/Best of Class 
award and another of the petitioner's wines won a silver award at the Pacific Rim International Wine 
Competition, a competition that had over 2,000 wines entered from Canada, the United States, Mexico, 
South America, South Africa and Japan. Of the 29 entries listed on the page of entries submitted, all 
won gold, silver or bronze awards. 
The director noted that the competitions issue numerous prizes and questioned the stature of the 
competitions in comparison with other competitions. Regardless, the director concluded that the 
beneficiary could not meet this criterion because the beneficiary was not the recipient of any of these 
awards. 
On appeal, counsel asserts that the petitioner established that the competitions were conducted with 
expert judges, double blind tests and that the "double gold" is the highest award given. Counsel further 
asserts that the regulation does not require that the petitioner distinguish the competitions from others 
in the field, only that the awards are nationally or internationally recognized. Finally, counsel notes that 
the beneficiary is the sole wine maker at the petitioning winery and, thus, the acclaim of the awards 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 4 
accrues to him. In the alternative, counsel asserts that this evidence should be considered as evidence 
of the petitioner's leading or critical role for a winery with a distinguished reputation pursuant to the 
criterion set forth at 8 C.F.R. 5 204.5(h)(3)(ix). 
A national or international pool of entries does not necessarily demonstrate that a competition is 
nationally or internationally recognized. The existence of several wine competitions raises the 
possibility that not all of the competitions are notable at the national level. Evidence that a competition 
is nationally significant might include coverage in a national trade journal or other national media. 
That said, we acknowledge that the petitioner's wines have won high honors at some of these 
competitions. 
The plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(i) explicitly requires evidence of "the 
alien's receipt" of qualifying awards or prizes. Thus, in order to meet this criterion, the alien must be 
the named recipient of the award. In light of the above, we concur with the director that the petitioner 
has not established that the beneficiary meets this criterion. That said, we concur with counsel that this 
evidence relates to the criterion set forth at 8 C.F.R. 5 204.5(h)(3)(ix) as will be discussed below. We 
note, however, that counsel raises this alternative assertion for the first time on appeal. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien S work in the Jield for which classiJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner initially submitted articles about wine events, including events hosted by the petitioning 
winery, and the influx of foreign winemakers in what appear to be local Finger Lakes or Upstate New 
York publications: the Star-Gazette, the Finger Lakes Times, the Rochester-based Democrat and 
Chronicle and Indulge: Finger Lakes Wineries, Restaurants and Attractions. The petitioner also 
submitted an article on New York winemaking in general in Wine Business Monthly, an article about 
the petitioning winery in "The All American Cheese and Wine Book" and a portion of an article that 
appears to be about Riesling grapes in The Wine News. 
In response to the director's request for additional evidence, the petitioner submits new published 
material that postdates the filing of the petition, including an interview with the beneficiary in 
~enndevours,~ a listing of one of the petitioner's wines as a Recent Vintage in Hugh Johnson's Picket 
Wine Book, a brief article on the Finger Lakes Region in New York that lists the petitioner as one 
winery that produces Riesling in Better Homes and Gardens and a listing of the petitioner as one of the 
10 "Fastest-Improving Producers" in Wine Report 2008. The petitioner must establish eligibility as of 
the date of filing. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. 
Cornm'r. 1971). Thus, we will not consider any published material published after that date. The 
petitioner also submitted a list of wineries, including the petitioner, as part of a cover story on New 
2 
 The petitioner submitted no evidence regarding the circulation of this publication or other evidence 
indicating that it constitutes a professional or major trade journal or other major media. 
Page 5 
York wine country in Wine Spectator and articles about wines produced by the beneficiary at the 
petitioning winery in publications such as Enotheque and Wine Review Online. 
The director concluded first and foremost that the material was not primarily about the beneficiary and, 
for the most part, only mentions him briefly. The director further concluded that the petitioner had not 
established that "all" of the materials were commensurate with major media. 
On appeal, counsel asserts that in the field of winemaking, media coverage falls into three categories: 
inclusion of the winery in leading wine books and journals, articles about top wineries in major trade 
publications, online sources and newspapers and trade journal articles which focus on an individual 
winemaker or a handful of winemakers. Counsel further asserts that while the petitioner may have 
included some "lesser known newspapers" in the original submission, those can be ignored. 
While listings in wine books and journals and coverage of wineries may be a typical type of media 
coverage in the industry, it does not meet the regulatory requirements of this criterion, set forth at 
8 C.F.R. 5 204.5(h)(3)(iii), which requires that the published material be "about the alien." Counsel 
does not suggest that this criterion does not apply to the beneficiary's field, as counsel acknowledges 
that trade journals do publish articles that focus on individual winemakers. Thus, we will not consider 
comparable evidence under this criterion pursuant to 8 C.F.R. 5 204.5(h)(4), which only allows the 
submission of comparable evidence where a criterion does not readily apply to the alien's field. 
Regardless, we are not persuaded that published material that is not about the alien is comparable to 
published material that is about the alien. 
Outside of the local publications, the only material predating the filing of the petition that discusses the 
beneficiary beyond a sentence or two is the section on the petitioning winery in "The All American 
Cheese and Wine Book." The section is titled with the petitioner's name, not the beneficiary's name, 
and is primarily about the petitioner itself. The section does state that the owners are aided by the 
beneficiary and then discusses his history and wines. Nevertheless, the title of the section, the contact 
information for the winery provided at the end of the section and a reading of the section as a whole 
reveals that it is primarily about the winery. Moreover, the record contains no evidence about the sales 
volume of this book. In fact, the record does not even include the publication date, as mandated by the 
regulation at 8 C.F.R. &j 204.5(h)(3)(iii). Thus, the petitioner has not established that the book 
constitutes a professional or major trade journal or other major media. 
In light of the above, the petitioner has not established that the beneficiary 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 alliedJield of specijication for which classijication is sought. 
Initially, the petitioner submitted a letter from Todd Steiner, Enology Outreach Specialist at The Ohio 
State University, expressing appreciation to the beneficiary for a reein to serve as a judge of the 2007 
Ohio Wine Competition and providing details of the event. m asserts that the competition 
'- Page 6 
hopes to equal or surpass the 273 entries fiom the previous year. 
 further indicates that he is 
enclosing the cover letter and entry form "sent to all commercial bonded wineries in Ohio." The 
petitioner also submitted an unsigned invitation to judge a wine competition, apparently from- 
, Coordinator of the International Eastern Wine Competition (IEWC) at the Coming Museum of 
Glass in New York's Finger Lakes region. 
In response to the director's request for additional evidence, the petitioner submits a signed letter from 
asserting that the beneficiary is "one of regular judges" and that 2008 would be the "fourth 
consecutive IEWC in which he has served as a judge." 
 indicates that the competition is one 
of the oldest and largest in North America, had over 2,100 entries in 2007, and includes entries fiom 
Europe and the southern hemisphere. 
 also indicates that the IEWC uses 32 judges. The 
promotional materials for this competition indicate that the judges are merely "wine knowledgeable 
rofessionals and media specialists who represent major East Coast markets from Miami to Toronto." 
1) indicates that the beneficiary served on a panel with a "famous British wine writer." 
Previously, however, 
4- 
states: "Since the Finger Lakes district has around 200 wineries, I 
could draw on dozens o winemakers to judge the competition, but I focus on a few who are 
acknowledged leaders." 
The director concluded that the record did not reflect that the beneficiary had garnered any recognition 
consistent with national or international acclaim from his judging experience. On appeal, counsel 
asserts that the director reversed the burden and that the petitioner has established that he was selected 
as a judge based on his national acclaim as a winemaker. 
Counsel is not persuasive. The evidence submitted to meet this criterion must be indicative of or 
consistent with national or international acclaim if that statutory standard is to have any meaning. 
Accord Yasar v. DHS, 2006 WL 778623 *9 (S.D. Tex. March 24,2006); All Pro Cleaning Services 
v. DOL et al., 2005 WL 4045866 * 11 (S.D. Tex. Aug. 26,2005). We are not persuaded that judging 
competitions in Ohio and western New York demonstrates any recognition beyond the eastern Great 
Lakes region. 
Without evidence that the beneficiary has judged competitions beyond the region where he works, 
we cannot conclude that he meets this criterion. 
Evidence of the alien's original scientlJic, scholarly, artistic, athletic, or business-related 
contributions of major signijicance in the field. 
Initially and in response to the director's request for additional evidence counsel asserted that the 
reference letters and other evidence established the beneficiary's original contributions of major 
significance through a collaboration with other local vineyards to jointly produce and market the 
Riesling wine Tierce, presentations at local seminars and collaborations with Cornell University. 
The director acknowledged the positive statements in the reference letters but concluded that opinions 
solicited for the purpose of supporting a visa petition could not substitute for independent evidence of 
sustained national or international acclaim. The director further concluded that while the Tierce 
collaboration was a novel concept, it could not be considered a contribution of major significance. 
Finally, the director concluded that the presentations and collaboration with Cornell University had not 
resulted in an original contribution of major significance to the field. 
On appeal, counsel asserts that the director "improperly assessed" the reference letters under this 
criterion when they were actually submitted as comparable evidence pursuant to the regulation at 
8 C.F.R. tj 204.5(h)(4). Counsel does not explain how the director erred in failing to consider these 
letters "as a separate stand alone category of eligibility" given that counsel raises this assertion for the 
first time on appeal. 
First, the regulation at 8 C.F.R. 5 204.5(h)(4) permits the submission of comparable evidence when the 
regulatory criteria at 8 C.F.R. 8 204.5(h)(3) do not "readily apply." Counsel has not demonstrated that 
the regulatory criteria do not readily apply to the beneficiary's field. Moreover, counsel has not 
explained how the necessarily subjective opinions of the beneficiary's references are comparable to the 
objective evidence specified in the regulatory criteria set forth at 8 C.F.R. tj 204.5(h)(3). Thus, we will 
consider the information in the letters as they relate to the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
Also on appeal, counsel asserts that the reference letters include letters from wine critics who are 
independent of the beneficiary and the beneficiary's competitors. Counsel further asserts that Tierce 
was the beneficiary's initiative and has gained the attention of the regional and national media, 
characterized as breaking "new stylistic ground." Finally, counsel asserts that the record demonstrates 
that the beneficiary was specifically chosen for the Cornell University collaboration based on his 
precision and notes that the university, one of two U.S. institutions to offer a program in Enology and 
Viticulture, relies on the beneficiary to assist in the training and education of its undergraduate students. 
According to the regulation at 8 C.F.R. fj 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. To be considered a contribution of major 
significance in the field of winemaking, it can be expected that the contribution will have already had 
a demonstrable impact in the field. 
As noted by the director, the record contains numerous letters from critics and other wine makers 
commenting on the beneficiary's experience and winemaking skills. They place him at the top of the 
industry in New York and credit him with raising wine quality standards in the region. They note his 
knowledge of cool climate grape growing and organic and sustainable viticultural practices. 
Head of Wine Research and Extension Program at Cornell University, 
asserts that the beneficiary's unconventional methods to ensure quality in New York's climate "are 
becoming routine methods of vineyard maintenance and winemaking procedures." -1 
Page 8 
does not, however, identify these methods or provide examples of their application at independent 
wineries beyond the beneficiary's collaboration on Tierce. does not assert that the 
beneficiary has impacted winemaking at the national level. 
winemaker at Fox Run Vineyards (located near the petitioner), asserts that the beneficiary 
improved quality at the petitioner and "acted as a valuable resource to other Finger Lakes 
winemakers and grape growers. does not provide any examples of the beneficiary's 
influence beyond this region. 
We also note the assertions that the beneficiary has unique experience and training in wine making. 
The issue of whether similarly-trained workers are available in the United States, however, is an 
issue under the jurisdiction of the Department of Labor. New York State Dep't of Transp., 22 I&N 
Dec. 215,221 (Comm'r. 1998). 
The initial letters were almost exclusively from New York State or Germany, where the beneficiary's 
family has been running vineyards for generations. One exception is from-, whose 
vineyard owns land in Penn Yan, New York, currently farmed by the petitioner. Another reference, 
of Grape American Wines in San Francisco, previously was a wholesaler in New York. 
Thus, these letters still do not demonstrate the beneficiary's recognition outside of the Finger Lakes 
region. 
In response to the director's request for additional evidence, the petitioner submitted letters from 
wine critics, journalists and contributors affiliated with Wine Advocate, Wine and Spirits and "Wine 
Report." These letters praise the results of the beneficiary's winemaking efforts in producing a 
quality wine. While significant to the petitioner and beneficial in promoting the region's wines, the 
beneficiary's winemaking ability is not a contribution of major significance to the overall field of 
winemaking. 
Regarding the beneficiary's Tierce initiative,-, President and Winemaker at Red Newt 
cellars id part of the ~ierce collaboration, asserts that it-was the first collaboration in the Finger 
Lakes and garnered national media attention. - further a sert that it "served as a focal 
point of the current evaluation of the Finger Lakes Industry." however, provides no 
examples of shifts in the industry in this region resulting from the collaboration. the third 
Tierce collaborator, asserts that the collaboration was the first in the entire industry and notes the 
positive reviews of the wine. 
A staff writer for the Rochester Democrat and Chronicle wrote a blog entry praising the result of the 
"outside-the-box thinking" Tierce collaboration. In this entry, she indicated that the wine would not 
be sold outside of tasting rooms. Subsequent coverage, however, suggests that the wine is marketed. 
In the April 2007 edition of Wine & Spirits, - refers to the collaboration as 
breaking "new stylistic ground." One of the reviewers for Wine Review Online selected Tierce as his 
pick for Wine of the Year. Without additional evidence of the impact of this novel collaborative 
initiative on the wine industry as a whole, we concur with the director that the beneficiary's 
initiative, while novel, has not been shown to be a contribution of major significance. 
an assistant professor at Cornell University, discusses his collaboration with the 
beneficiary. 
5 explains that the beneficiary is "critically involved in a research project Dr. Sacks began the previous year investigating the effects of novel polymers to absorb off-flavors from 
wines. Whilm was able to do small-scale work on this ~roiect, he needed to "scale-up" with a 
A", 
winemaker partner. 
 asserts that the majority of winemakers in the region do not'have the 
precision in their winemaking necessary for the project. further asserts, however, that the 
cleanliness of the beneficiary's facility and quality of record-keeping was im ressive. - 
maintains that the project produced "very positive preliminary data" and that PI is filing a patent 
for the technique. While projects that the technique will "bring economic benefit to ow 
state" through improved wine and licensing to other regions, the record contains no evidence that the 
patent has been granted or that any other independent winery has expressed any interest in licensing the 
patent. It would appear that the results of this project are too recent to determine the impact of the 
project. Thus, we cannot conclude that this work is a contribution of major significance. 
The record satisfactorily establishes that the beneficiary is a talented winemaker whose wines have won 
the praise of critics. The beneficiary has demonstrated initiative by forming a successful collaboration 
with two other local winemakers. The beneficiary is also a careful winemaker able to control variables 
such that his work is suitable for collaboration with a university. Talent, initiative and careful work are 
not, in and of themselves, contributions of major significance. The petitioner must demonstrate the 
impact the beneficiary has had on the field as a whole, including outside of the Finger Lakes region. 
Without evidence of the impact of the beneficiary's work on the winemaking industry as a whole, the 
petitioner cannot establish that the beneficiary has made a contribution of major signfzcance as 
required by the plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(v). In light of the above, the 
petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
As stated above, the beneficiary is the sole wine master for the petitioner, a winery whose wines have 
been recognized in trade journals, books, newspaper wine reviews and competitions around the United 
States.   he petitioner's kine was also servedai the 2003 Emmy ~wards:'~ocket 
Wine Book" lists the petitioner as one of 11 top wineries in the Finger Lakes region. Thus, we are 
persuaded that the beneficiary performs a leading or critical role for the petitioner &d that the petitioner 
enjoys a distinguished reputation nationally. 
In light of the above, the beneficiary meets this single 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 himself as a 
wine master 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 a wine maker, 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.