remanded EB-1A Case: Culinary Arts

J 
U.S. Citizenship 
and· Immigration 
Services· 
MATTER OF A-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 19, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a pastry chet: seeks classification as an individual of extraordinary ability in the arts. 
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 Form I-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had not submitted the required evidence for eligibility. 
• On appeal, the Petitioner submits additional evidence and asserts that the Director did not consider 
the documentation submitted and her decision did not explain the reasons for denying the petition. 
During the adjudication of the appeal, we issued the Petitioner a notice of intent to dismiss (NOID) 
· due to discrepancies regarding her previous employment experience. The Petitioner responded to 
the NOID, providing supporting documentation to rebut the information discussed therein. 
Upon de. nova review, we will remand the matter to the Director for further proceedings consistent 
with the following. · 
I. LAW < 
Section'203(b)(l)(A) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or int~rnational 
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 m the area of 
extraordinary ability, and 
(iii) the alien.'s entry into the United States will substantially benefit prospectively· the. 
United States. 
Matter of A-R-
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets fo1ih two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is a major, 
internationally recognized award). Alternatively, he or she must provide documentation that meets 
at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items 
such as awards, memberships, and published l'naterial in certain media). 
Where a petitioner meets these initial evidence requirements, we, then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazar;an v. USCJS, 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);.RUal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the ''truth is to be 
determined not by the quantity of ~vidence alone but by it_s quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a pastry chef. As the record does not establish that she has received a major, 
internationally recognized award, she must satisfy at least three of the ten criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). 
The Director denied the petition, concluding that the Petitioner did not establish eligibility as an 
individual of extraordinary ability. On appeal, the Petitioner asserts that the Director did not provide 
sufficient reasoning for· the denial even though the initial documentation submitted with the petition 
contained evidence pertaining to the following criteria: awards under 8 C.F.R. § 204.5(h)(3)(i), 
leading role under 8 C.F.R. § 204.5(h)(3)(viii), and salary under 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner bears the burden to establish eligibility for any benefit, and each request must be 
properly completed and filed with all initial evidence required by applicable regulations or other 
instructions. · 8 C.F.R. § 103.2(b)(l). · 1f the required initial evidence is ·submitted but does not 
. establish eligibility, U.S. Citizenship and Immigration Services (USCIS) may deny the petition for 
•ineligibility, request more evidence, or issue a notice of intent to deny and provide an opportunity to 
respond'. 8 C.F.R. § 103.2(b)(8)(ii). Notably, the instructions for the Form 1-140 specify that a 
petitioner seeking to establish extraordinary ability must include evidence of a one-time achieve~ent 
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Matter of A-R-
or three of the criteria set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x), plus evidence of coming to ~he 
· United States to continue to work in his or her area of expertise. 1 
Where a visa petition is denied based on a deficiency of proof, and the Director did not provide 
notice of the deficiency and offer a reasonable opportunity to address it before the denial, and the 
appeal contains additional evidence addressing the deficiency, then in the ordinary course of events 
we will remand to allow the Director to consider and address the new material. Matter of Soriano, 
19 I&N Dec. 764, 766 (BIA 1988). Accordingly, we will remand the matter to the Director to 
consider the evidence submitted with the petition and the additional evidence submitted on appeal 
and in response to the NOID. 
As an additional matter, the Petitioner alleged that her employment as a. chef at the 
in demonstrated her leading role for an organization with a distinguished 
·, reputation under 8 C.F.R § 204.5(h)(3)(viii). The record contained a letter from 
identified as the general manager of this hotel, indicating that the Petitioner worked there as head 
chef in the pastry division from February 1, 1998, through December 31, 2002. However, in a recent 
overseas investigation, an officer contacted the manager of the who 
informed the officer that the Petitioner was never employed there and that the hotel has never 
employed an individual named as the general manager. We informed the 
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Petitioner of this derogatory information in a NOID and provided an oppo1iunity for her to ~ebut 
these claims. 
In response, the Petitioner submitted documentation to support her claim that she did work as a chef 
for the Accordingly, the Director should also consider the Petitioner's 
response to determine if it is sufficient to overcome the alleged misrepresentation. 
III. CONCLUSION 
For the foregoing reasons, we remand the matter to the Director to consider whether the Petitioner 
meets at least three of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). If the Petitioner meets three of 
these criteria, the Director must consider the totality of the material provided in a final merits 
determination and assess whether the record shows sustained national or international acclaim and 
demonstrates that the individual is among ti1e small percentage at the very top of the field of 
endeavor. See Kazarian v. USCJS, 596' F.3d 1115. 
ORDER: The decisi~n of the Director i$ withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing ana lysis . 
Cite as Matter of A-R-, ID# 1614058 (AAO Feb. 19, 2019) 
1 See https://www.uscis .gov/i- I 40 under "Instructions for Form 1-140." . ~--
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