dismissed O-1A Case: Culinary Arts

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOpy 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE MAY 1 1 2011 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section 10 I (a)(l5)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § I I Ol(a){l5)(O)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office ("AAO") on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's status as an 0-1 nonimmigrant 
pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), as an alien with 
extraordinary ability in business. The petitioner, an Indian restaurant, seeks to employ the beneficiary as its 
executive chef for two additional years. 1 
The director denied the petition, concluding that the pettttoner: (1) failed to submit evidence specifically 
requested in the director's request for additional evidence issued on October 13,2010; and (2) failed to establish 
that the beneficiary qualifies as an alien of extraordinary ability. The director noted that the petitioner did not 
submit evidence relating to the evidentiary criteria at 8 C.F.R. § 214.2(0 )(3)(iii)(A) or (B), either in support of the 
initial petition or in response to the director's request for evidence. The director acknowledged counsel's assertion 
that a request for an extension of an alien's 0-1 status, pursuant to 8 C.F.R. § 214.2(0)(12)(i), requires only a 
statement explaining the reasons for the extension. The director emphasized that the regulations do in fact grant 
U.S. Citizenship and Immigration Services (USCIS) the authority to request additional evidence in cases 
involving the extension of status for a beneficiary to continue employment in the same position with the same 
employer. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO for review. On appeal, counsel asserts that the petitioner believed, relying on a 1992 
legacy Immigration and Naturalization Service (INS) memorandum and the regulations at 8 C.F.R. 
§ 214.2(0)(11), that USCIS would rely on its prior finding that the beneficiary is eligible for 0-1 classification 
and that "whatever documentation [of! extraordinary ability had previously been submitted was available" for 
reconsideration. In support of the appeal, the petitioner submits a copy of the beneficiary's initial 0-1 petition 
with supporting documentation, along with documentation which counsel claims is sufficient to satisfY the 
regulatory criteria at 8 C.F.R. §§ 214.2(0)(3)(iii)(B)(1), (3), (5) and (7). 
I. The Law 
Section 101(a)(lS)(0)(i) of the Act provides classification to a qualified alien who has extraordinary ability in the 
sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international 
acclaim, whose achievements have been recognized in the field through extensive documentation, and who seeks 
to enter the United States to continue work in the area of extraordinary ability. 
The regulation at 8 C.F.R. § 214.2(0)(3)(ii) states, in pertinent part: 
1 Pursuant to 8 C.F.R. § 214.2(0)(12)(ii), an extension of stay may be authorized in increments of up to one 
year for an 0-1 beneficiary to continue or complete the same activity for which he or she was admitted plus 
an additional 10 days to allow the beneficiary to get his or her personal affairs in order. A two-year extension 
of stay cannot be granted. 
Page 3 
Extraordi nary ability in tbe field of science, education, business, or athletics means a level of 
expertise indicating that the person is one of the small percentage who have arisen to the very 
top of the field of endeavor. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive for aliens in 
the fields of business, education, athletics, and the sciences. See 59 FR 41818,41819 (August 15,1994); 137 
Congo Rec. S18242, 18247 (daily ed., Nov. 26, 1991) (comparing and discussing the lower standard for the 
arts). 
In a policy memorandum, the legacy Immigration and Naturalization Service (INS) emphasized: 
It must be remembered that the standards for 0-1 aliens in the fields of business, education, 
athletics, and the sciences are extremely high. The 0-1 classification should be reserved only 
for those aliens who have reached the very top of their occupation or profession. The 0-1 
classification is substantially higher than the old H-I B prominent standard. Officers involved 
in the adjudication of these petitions should not "water down" the classification by approving 
0-1 petitions for prominent aliens. 
Memorandum, Lawrence Weinig, Acting Ass!. Comm'r., INS, "Policy Guidelines for the Adjudication of 0 
and P Petitions" (June 25, 1992). 
The regulation at 8 C.F.R. § 214.2(0)(3)(iii) states, in pertinent part:' 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the fields of science, education, 
business, or athletics. An alien of extraordinary ability in tbe fields of science, education, 
2 The petitioner indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that it sought to classifY 
the beneficiary as an alien of extraordinary ability in sciences, education, business or athletics. In response to 
the RFE, counsel noted that the appropriate category for an executive chef is that of an alien of extraordinary 
ability in the arts. The AAO notes that, given the nature of the beneficiary's claimed area of extraordinary 
ability, the petitioner could have reasonably requested review of the petition under the regulations applicable 
to the field of arts at 8 C.F.R. § 214.2(0)(3)(iv). However, as the petitioner requested that the beneficiary be 
granted 0-1 status as an alien of extraordinary ability in the field of science, education, business, or athletics, 
tbe director properly limited her review oftbe evidence as it pertains to the definition of extraordinary ability and 
specific eligibility criteria applicable to tbat classification at 8 C.F.R. § 214.2(0)(3)(iii). The petitioner bears the 
burden of proof with respect to the specific visa classification that they request on the Form 1-129. USCIS 
will only consider the visa classification that the petitioner annotates on the petition, and has no authority to 
consider other classifications in the alternative. Further, The Ninth Circuit has determined that once USCIS 
concludes that an alien is not eligible for the specifically requested classification, the agency is not required to 
consider, sua sponte, whether the alien is eligible for an alternate classification. Brazil Quality Stones, Inc., V. 
Chertoff, Slip Copy, 2008 WL 2743927 (9th Cir. July 10, 2008). If the petitioner wishes to classifY the 
beneficiary as an alien of extraordinary ability in the arts, it may, of course, file a new petition and request 
such classification. 
Page 4 
business, or athletics must demonstrate sustained national or international acclaim and 
recognition for achievements in the field of expertise by providing evidence of: 
(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or 
(B) At least three of the following forms of documentation: 
(1) Documentation of the alien's receipt of nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(2) 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 or international experts in their disciplines or 
fields; 
(3) Published material in professional or major trade publications or major media 
about the alien, relating to the alien's work in the field for which classification is 
sought, which shall include the title, date, and author of such published material, 
and any necessary translation; 
(4) Evidence of the alien's participation on a panel, or individually as a judge of the 
work of others in the same or in an allied field of specialization to that for which 
classification is sought; 
(5) Evidence of the alien's original scientific, scholarly, or business-related 
contributions of major significance in the field; 
(6) Evidence of the alien's authorship of scholarly articles in the field, in professional 
journals, or other major media; 
(7) Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation; 
(8) Evidence that alien has either commanded a high salary or will command a high 
salary or other remuneration for services, evidenced by contracts or other reliable 
evidence. 
(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to 
establish the beneficiary's eligibility. 
Page 5 
The regulations pertaining to extensions of an 0-1 alien's visa petition validity and stay are set forth at 8 
C.F.R. §§ 214.2(0)(11) and (12). The regulation at 8 C.F.R. § 214.2(0)(11) governs extensions of visa 
petition validity and states: 
The petitioner shall file a request to extend the validity of the original petition under section 
101(a)(15)(0) of the Act on Fonn 1-129, Petition for a Nonimmigrant Worker, in order to 
continue or complete the same activities or events specified in the original petition. 
Supporting documents are not required unless requested by the Director. A petition extension 
may be filed only if the validity of the original petition has not expired. 
The regulation at 8 C.F.R. § 214.2(0)(12)(i) provides, in relevant part: 
Extension procedure. The petitioner shall request extension of the alien's stay to continue or 
complete the same event or activity by filing Fonn 1-129 accompanied by a statement 
explaining the reasons for the extension. 
II. Discussion 
A. Evidentiary requirements for an 0-1 petition extension 
The primary ground for denial in this matter was the petitioner's failure to submit evidence relating to the 
eligibility criteria for the requested classification at 8 C.F.R. § 214.2(0)(3)(iii)(A) or (B), either in support of the 
initial petition or in response to the director's request for evidence dated October 13,2010. 
The petitioner filed the Fonn 1-129, Petition for a Nonimmigrant Worker, on September 30, 2010. The petition 
was accompanied by: (1) a copy of a prior approval notice granting the beneficiary 0-1 status for employment 
with the petitioner from October II, 2008 through September 30, 2010; a copy of the beneficiary's current Fonn 
1-94 and passport pages; (3) an advisory opinion letter dated September I I, 2008 from of the 
Nevada Restaurant Association; and (4) a letter from counsel dated September 28, 2010. In this letter, counsel 
stated: 
This is a request for an extension of a UlC'VIL'UM 
According to a memorandum authored by 
214h-C (Sept. 29, 1992) reprinted in 69 Interpreter Releases 1471-72 (Nov. 16, 1992) no 
additional documentation is necessary other than a statement eXj~~'ll. the reason for the stay 
request. To that end, we are attaching the statement and supporting 
documentation for her request. 
The petitioner did not, in fact, submit a statement explaining the reason for the extension request. There is no 
statement from ~' in the record and no other mention of this individual. 
The director issued a request for additional evidence (HRFEH) on October 13, 20 I 0, in which requested: (I) 
evidence to satisty the evidentiary criteria at 8 C.F.R. § 214.2(0)(3)(iii)(A) or (B); (2) a copy of the petitioner's 
Page 6 
contractual agreement with the beneficiary; and (3) docwnentation of remuneration the beneficiary received in the 
three months preceding the filing of the petition as evidence that he has been maintaining a valid nonimmigrant 
status. The director acknowledged that the instant petition is a request for an extension of status, but noted that 
"without any documentation, USClS cannot verifY at this point that there has not been a material change to either 
the petitioner's or the beneficiary's eligibility for the nonimmigrant classification sought." 
In a response dated November 6, 2010, counsel acknowledged that the petitioner had inadvertently failed to 
submit the required statement explaining the reasons for the extension request pursuant to 8 C.F.R. 
§ 214.2(0)(12)(i). The petitioner submitted a letter dated November 5, 2010, indicating the petitioner's desire to 
employ the beneficiary in his current position of Executive Chef for an additional two years at a salary of 
$60,000. The letter is attributed to the petitioner's owner, but was not signed. 
The petitioner failed to submit any additional documentation in response to the RFE. Counsel explained as 
follows: 
On or about October, 2008, your office initially approved an 1-129 petition for [the petitioner] 
on behalf of [the beneficiary] as an alien of extraordinary ability. The job title listed on the 
petition was "executive chef." This is the same employer and the same job title for the same 
position at the same restaurant as initially approved. Upon approval there was a de facto 
determination made by your office that the beneficiary was an alien of extraordinary ability. As 
mentioned earlier, the regulations require only a statement explaining the reasons for the 
extension when the petitioner is seeking an extension "to continue or complete the same event or 
activity." [8 CFR 214.2(0)(12)(i)]. The Bednarz Memo dated September 29,1992 reprinted at 
69 Interpreter Releases 1471-71 (Nov. 16, 1992) further explains that no additional 
documentation is necessary other than this statement. Section 30.2(d)(2)(B) of the U.S.C.I.S. 
Adjudicator's Field Manual is consistent with this approach .... 
Counsel asserted that he was "unable to find any authority for the proposition as suggested in the RFE that the 
employee needs to reestablish his entitlement to 0-1 extraordinary ability status." Counsel suggested that 
additional evidence could only be requested if there has been a change in the terms and conditions of 
employment. 
The director denied the petition based, in part, on the petitioner's failure to provide evidence in response to 
USClS' request noting that, pursuant to 8 C.F.R. § 103.2(b)(14), failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. The director emphasized that the 
regulation at 8 C.F.R. § 214.2(0)(11) does in fact provide the director the authority to request supporting 
documentary evidence, even in those cases involving an extension of status for a beneficiary to continue 
employment in the same position with the same employer. The director noted that the regulations do not 
specifY that additional evidence may be requested only under specific circumstances. 
On appeal, counsel notes that the petitioner believed that it properly relied on the regulation at 8 C.F.R. 
§ 214.2(0)(12)(i) and the above-referenced and further believed that it could rely on 
USClS' previous approval and "whatever documentation [of] extraordinary ability had previously been 
submitted." Counsel notes that "apparently this was not the case." 
Page 7 
Upon review, the petitioner has failed to overcome the stated grounds for denial. Counsel's assertion that the 
director did not have the authority to request additional evidence in this matter is clearly incorrect. As noted 
by the director, the plain language of the regulation at S C.F.R. § 214.2(0)(11) provides that "supporting 
documents are not required unless specifically requested by the Director." (Emphasis added.) The regulations 
do not qualify this provision by indicating that the director may request additional evidence only under 
specific circumstances. 
The evidence submitted at the time of filing did not meet even the minimum evidentiary requirements set 
forth at S C.F.R. § 214.2(0)(12)(i) for an extension request as it did not include a statement trom the 
petitioning employer. In such cases, the regulation at S C.F.R. § 103.2(a)(S)(ii) gives the director authority to 
either deny the petition or to request additional evidence. 
The AAO notes that the "Bednarz memorandum" on which counsel relies pre-dates the current regulations 
governing the 0-1 visa classification, and is not in fact a memorandum but a letter. Letters and 
correspondence issued by the Office of Adjudications are not binding on the AAO. Letters written by the 
Office of Adjudications do not constitute official USCIS policy and will not be considered as such in the 
adjudication of petitions or applications. Although such letters may be useful as an aid in interpreting the law, 
such letters are not binding on any USCIS officer as they merely indicate the writer's analysis of an issue. See 
Memorandum from Thomas Cook, Acting Associate Commissioner, Office of Programs, Significance of 
Letters Drafted by the Office of Adjudications (December 7, 2000). 
Finally, we acknowledge counsel's claim that the petitioner believed that the director had available evidence 
of the beneficiary'S extraordinary ability that was submitted with the initial petition. As noted by the director, 
each petition filing is a separate proceeding with a separate record. See S C.F.R. § 103.S(d). In making a 
determination of statutory eligibility, USCIS is limited to the information contained in the record of 
proceeding. See S C.F.R. § 103.2(b)(l6)(ii). Ifa director requests additional evidence that the petitioner may 
have submitted in conjunction with a separate nonimmigrant petition filing, the petitioner is, nevertheless, 
obligated to submit the requested evidence, as the records of related nonimmigrant proceedings are not 
combined. 
Based on the foregoing, the petitioner has failed to overcome the director's determination that the petitioner 
failed to submit requested evidence that precludes a material line of inquiry. Such failure shall be grounds for 
denying the petition pursuant to S C.F.R. § 103 .2(b)(14). Accordingly, the appeal will be dismissed. 
B. The Beneficiary's Eligibility as an Alien of Extraordinary Ability 
The remaining issue in this matter is whether the petitioner established that the beneficiary is an alien of 
extraordinary abil ity in business. 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has received 
a major, internationally recognized award pursuant to S C.F.R. § 214.2(0 )(3)(iii)(A), then it will meet its 
burden of proof with respect to the beneficiary'S eligibility for 0-1 classification. If the petitioner does not 
submit evidence that the beneficiary has received a major, internationally recognized award, the petitioner 
Page 8 
must establish the beneficiary's eligibility under at least three of the eight criteria set forth at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B). 
In denying the petition, the director determined that the petitioner neither submitted evidence nor made any 
assertions regarding the beneficiary's eligibility under any of the applicable evidentiary criteria, and therefore 
failed to meet its burden of proof. The director emphasized that the petitioner chose not to avail itself of the 
opportunity to submit evidence of the beneficiary's eligibility as requested in the RFE. 
On appeal, counsel asserts that the petitioner sought to rely on the approval of the initial 0-1 petition and did 
not believe that additional evidence of the beneficiary'S eligibility was required to warrant the approval of the 
petition extension. Counsel does not claim that the petitioner submitted any evidence of the beneficiary'S 
eligibility underthe criteria at 8 C.F.R. § 214.2(0 )(3)(iii)(A) or (B) prior to the adjudication of the petition. 
Counsel requests that the AAO consider on appeal a copy of the beneficiary'S previous 0-1 petition and 
supporting documentation, as well as additional documentary evidence pertaining to the beneficiary'S 
eligibility under the regulatory criteria at 8 C.F.R. § 214.2(0)(3)(iii)(l), (3), (5) and (7). 
Upon review, the AAO finds that the director properly denied the petition. The petitioner's complete reliance on 
the prior approval of its 0-1 petition was misplaced. The AAO notes that prior approvals do not preclude USC IS 
from denying an extension of the original visa based on reassessment of the petitioner's or beneficiary'S 
qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The mere 
fact that USCIS, by mistake or oversight, approved a visa petition on one occasion does not create an automatic 
entitlement to the approval of a subsequent petition for renewal of that visa. Royal Siam Corp. v. Chertoff, 484 
F.3d 139, 148 (lst Cir 2007); see also Matter of Church Scientology Int'/., 19 I&N Dec. 593, 597 (Comm'r. 
1988). 
As noted above, each nonimmigrant petition filing is a separate proceeding with a separate record of proceeding 
and a separate burden of proof. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, 
USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. § 
I03.2(b)(16)(ii). In the present matter, the director reviewed the record of proceeding and concluded that the 
petitioner was ineligible for an extension of the nonimmigrant visa petition's validity based on the petitioner'S 
failure to submit any substantive evidence relating to the evidentiary criteria at 8 C.F.R. § 214.2(0)(3)(iii)(A) or 
(B). In both the request for evidence and the final denial, the director clearly articulated the objective statutory 
and regulatory requirements and applied them to the case at hand. Despite any number of previously approved 
petitions, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its 
burden of proof in a subsequent petition. See section 291 of the Act. 
Further, we note that, although the petitioner requested on the initial Form 1-129 petition that it was requesting 
classification of the beneficiary as an alien of extraordinary ability in business, USCIS records reflect that the 
petition was approved as an "01 B" petition filed on behalf of an alien of extraordinary ability in the arts. As 
noted above, the petitioner bears the burden of proof with respect to the specific visa classification that they 
request on the Form 1-129. USCIS will only consider the visa classification that the petitioner annotates on the 
petition, and has no authority to consider other classifications in the alternative. It appears that USCIS erred in 
Page 9 
adjudicating the initial petition by applying the regulatory criteria applicable to aliens of extraordinary ability in 
the arts, rather than applying the criteria applicable to the classification requested by the petitioner. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive for aliens in 
the fields of business, education, athletics, and the sciences. See 59 FR 41818,41819 (August 15,1994); 137 
Congo Rec. S18242, 18247 (daily ed., Nov. 26,1991) (comparing and discussing the lower standard for the 
arts). As it appears that USCIS applied the lower standard when adjudicating the previous petition, a full 
review of the beneficiary's eligibility under the requested classification is clearly warranted in this matter. 
Further, the AAO notes that the evidence submitted in support of the initial petition, now available for review, 
included: information about the petitioner; the beneficiary's resume; letters from the beneficiary's prior employers 
solely confirming his dates of employment and job titles; a few published articles that mention the beneficiary; 
and the above-referenced peer advisory opinion letter from Nevada Restaurant Association. It is unclear how the 
director determined, based on the amount and type of objective evidence submitted, that the beneficiary met the 
eligibility requirements for aliens of extraordinary ability in business, or even the lesser requirements for aliens of 
extraordinary ability in the arts. 
Finally, we note that we will not consider the new evidence offered on appeal. Where, as here, a petitioner 
has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had 
wanted the submitted evidence to be considered, it should have submitted the documents in response to the 
director's request for evidence. Id. Under the circumstances, the AAO need not and does not consider the 
sufficiency of the new evidence submitted on appeal. For this additional reason, the appeal will be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. V. United States, 229 F. Supp. 
2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.