dismissed O-1A Case: Culinary Business

U.S. Citizenship 
and Immigration 
Services 
In Re : 17479636 
Appeal of Vermont Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL. 27, 2021 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner , a culinary development business , seeks to temporarily employ the Beneficiary as a Chief 
Executive Officer. It seeks to classify her as an 0-1 nonimmigrant, a visa classification available to 
foreign nationals who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in the field through extensive 
documentation . See Immigration and Nationality Act (the Act) section 101(a)(15)(O)(i), 8 U.S .C. 
§ 1101(a)(15)(O)(i). 
The Director initially approved the Form 1-129, Petition for a Nonimmigrant Worker, granting the 
Beneficiary 0-1 classification . The Director subsequently issued a notice of intent to revoke (NOIR) 
the approval of the petition. After reviewing the Petitioner's response to the NOIR, the Director issued 
a notice of revocation (NOR), finding that the Beneficiary did not qualify for classification as an 
individual of extraordinary ability in business . See 8 C.F.R. § 214 .2(o)(8)(iii)(A)(5). The Director 
determined that the Petitioner did not satisfy , as required, the alternative evidentiary criteria applicable 
to individuals of extraordinary ability in business , either a major, internationally recognized award or 
at least three of eight possible forms of documentation, pursuant to 8 C.F.R. § 214 .2(o)(3)(iii)(A)-(B), 
and that the Petitioner had provided conflicting information to U.S. Citizenship and Immigration 
Services (USCIS) . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S.C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LAW 
As relevant here, section 101(a)(15)(O)(i) of the Act establishes 0-1 classification for an individual who 
has extraordinary ability in the sciences, arts, education, business , or athletics that 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. Department of Homeland Security (DHS) regulations define "extraordinary 
ability in the field of science , education, business, or athletics" as "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." 8 C.F.R. 
§ 214.2(o)(3)(ii). 
Next, DHS regulations set forth alternative evidentiary criteria for establishing a beneficiary's 
sustained acclaim and the recognition of achievements. 8 C.F.R. § 214.2(o)(3)(iii). A petitioner must 
submit evidence either of "a major, internationally recognized award, such as a Nobel Prize," or of at 
least three of eight listed categories of documents. 8 C.F.R. § 214.2(o)(3)(iii)(A)-(B). If the petitioner 
demonstrates that the criteria in paragraph ( o )(3)(iii) of this section do not readily apply to the 
beneficiary's occupation, it may submit comparable evidence in order to establish the individual's 
eligibility. 8 C.F.R. § 214.2( o )(3)(iii)(C). 
The submission of documents satisfying the initial evidentiary criteria does not, in and of itself: 
establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994) ("The 
evidence submitted by the petitioner is not the standard for the classification, but merely the 
mechanism to establish whether the standard has been met."). Accordingly, where a petitioner 
provides qualifying evidence satisfying the initial evidentiary criteria, we will determine whether the 
totality of the record and the quality of the evidence shows sustained national or international acclaim 
such that the individual is among the small percentage at the very top of the field of endeavor. See 
section 10l(a)(l5)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iii). 1 
Finally, the regulation at 8 C.F.R. § 214.2(o)(8)(i)(B) provides that the Director may revoke a petition 
approval at any time, even after the validity of the petition has expired. The regulation at 8 C.F.R. 
§ 214.2( o )(8)(iii) sets forth the grounds for revocation on notice: 
(A) Grounds.for revocation. The Director shall send to the petitioner a notice of intent to 
revoke the petition in relevant part if it is determined that: 
( 1) The beneficiary is no longer employed by the petitioner in the capacity specified 
in the petition; 
(2) The statement of facts contained in the petition was not true and correct; 
(3) The petitioner violated the terms or conditions of the approved petition; 
( 4) The petitioner violated the requirements of section 101 ( a)(l 5)(O) of the Act or 
paragraph ( o) of this section; or 
( 5) The approval of the petition violated paragraph ( o) of this section or involved 
gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement 
of the grounds for revocation and the time period allowed for the petitioner's rebuttal. 
The petitioner may submit evidence in rebuttal within 30 days of the date of the 
notice. The Director shall consider all relevant evidence presented in deciding 
whether to revoke the petition. 
1 See also Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010), in which we held that, ·'truth is to be determined not 
by the quantity of evidence alone but by its quality." 
2 
II. ANALYSIS 
As previously mentioned, the Petitioner, a culinary development business, seeks to employ the 
Beneficiary as its CEO. The record indicates that the Beneficiary founded the petitioning company in 
2014. The Petitioner, a New York limited liability company, is in the business of producing and selling 
I kfrozen desserts) as the specialty food linel I The record also shows that 
the Beneficiary previously worked in hospitality entrepreneurship, primarily inl l as the 
general manager of several restaurants and hotels. 
A. Evidentiary Criteria 
The Director determined that the Petitioner did not claim the Beneficiary met the evidentiary criterion 
at 8 C.F.R. § 214.2(o)(3)(iii)(A), and that it did not satisfy any of the criteria described at 8 C.F.R 
§ 214.2( o )(3)(iii)(B) . On appeal, the Petitioner maintains that the Beneficiary meets three criteria . 2 
As discussed below , we find that the exhibits do not satisfy any of the evidentiary categories described 
at 8 C.F.R. § 214 .2(o)(3)(iii)(B) . 
Documentation of the alien 's receipt of nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor . 8 C.F.R . § 214.2(o)(3)(iii)(B)(l). 
On appeal, the Petitioner maintains that the Beneficiary meets this criterion based upon her receipt of 
thd I Ministry of Tourism 2007 International Day of Tourism award, her "ongoing business 
negotiations with culinary giants likel 11 I, andl I 
I I and her membership in "the esteemed VIP Professional Woman of the Year Circle." 
The Director found insufficient evidence to establish that the Petitioner meets the regulatory 
requirements of this criterion, and we agree with this determination. It is the Petitioner's burden to 
establish eligibility for every element of this criterion. Not only must the Petitioner demonstrate the 
Beneficiary's receipt of prizes and awards, it must also demonstrate that those prizes and awards are 
nationally or internationally recognized for excellence in the field of endeavor. In other words, the 
Petitioner must establish that the Beneficiary's prizes and awards are recognized nationally or 
internationally for excellence in the field beyond the awarding entities. Here, we find insufficient 
evidence to establish that the submitted evidence meets all elements of this criterion. 
The Petitioner provided a certificate given to the Beneficiary on the occasion of "The International 
Day of Tourism 2007" from the Ministry ofTourisml I stating that "[t]ourism is a wjde open 
field for woman" and "[a]ppreciation goes for [the Beneficiary] General Manager of[ I 
I I Hotels." We note that this award is referred to elsewhere in the record as the "2007 Tourism 
and Open Door for Women Award." 
2 We note that the Director determined that the Petitioner claimed, but did not establish, that the Beneficiary meets the 
criteria related to membership in associations under 8 C.F.R § 214.2(o)(3)(iii)(B)(2) , published material under 8 C.F.R 
§ 214.2(o)(3)(iii)(B)(3) , judging under 8 C.F.R § 214.2(o)(3)(iii)(B)(4) , and the requirements for comparable evidence 
under 8 C.F.R. § 214.2(o)(3)(iii)(C). On appeal, the Petitioner does not contest the Director 's finding that the Beneficiary 
does not meet these criteria or offer additional arguments . Accordingly , we will not further address these issues in our 
decision . 
3 
The Petitioner also provided a letter dated 2019 from.__ _____ ~the Minister of Tourism of 
I I who indicates that in 2007 the Beneficianr was given the aforementioned award "for her 
accomplishments as a woman in tourism itj l specifically for her work with the I I 
joining the ranks of other exceptional restaurant and hospitality luminaries." He indicates that her 
receipt of the award waj' in part, based on her accomplishments as the managing director of the 
I , and its I I restaurant which opened in 1998 and was 
purchased by an investor "within three years." He farther provides that tourism "is incredibly 
important forl I which has a robust tourism sector that largely contributes to the domestic 
economy as a major source of income and employment" and that "the Ministry of Tourism takes very 
seriously the accomplishments of individuals such as [the Beneficiary] and bestowing an award such 
as this is illustrative of her extraordinary accomplishments and recognition of her status as one of the 
very finest innovators in thd I hospitality industry." 
The Petitioner also submitted an article titled "Sectors in Focus" from that .__ ______ __., 
provides key facts and figures, competitive advantages, and market opportunities related to the 
I I tourism sector, including that "[ t ]he Tourism sector has traditionally been one o±1 ts 
leading economic sectors, re res en tin a ma· or source of income and em lo ment." The record also 
contains an article titled - October 201 7" 
published b~ I Neither of these items mentions "The International Day of Tourism" 
award or the Beneficiary's receipt of that award in 2007. 
Here, .__ _____ ~s letter does not offer sufficient explanation, nor the record does contain 
additional documentation, demonstrating how the aforementioned award qualifies as a nationally or 
internationally-recognized prize or award for excellence in the Beneficiary's field, such as the 
origination, purpose, significance, and scope of the award, the criteria used to nominate and judge the 
participants and award winners, the number of awardees or prize recipients as well as any limitations 
on competitors, or other information, such as media announcing the award winners. In addition, I 
although the award mentions the Beneficiary's position as general manager of the I I and 
I I hotels, it does not indicate that it was in recognition of the Beneficiary's past achievements 
in those positions. 
Further, the language of this criterion specifically requires that the Beneficiary's awards be nationally or 
internationally recognized in the field of endeavor and it is the Petitioner's burden to establish every 
element of this criterion. A competition may be open to individuals from throughout a particular 
country or countries, but this factor alone is not adequate to establish that an award or prize is 
"nationally or internationally recognized." Here, the documentation submitted does not show that the 
I I Ministry of Tourism International Day of Tourism Award has garnered a significant level 
of recognition beyond the context of the International Day of Tourism event in which it was presented 
and therefore is commensurate with a nationally or internationally recognized award for excellence in 
the field. 
Finally, the Petitioner has not established how the Beneficiary's membership in the VIP Professional 
Woman of the Year Circle or her business negotiations withl 11 I and 
constitute a "nationally or internationally recognized constitutes prize '------------~ or award" as required by the language of the this criterion. Although the Petitioner asserts that the 
Beneficiary's business negotiating "serves as its own [form] of national recognition of success in the 
4 
industry when the [petitioning] company's products hit menus and freezers around the country," the 
record does not contain evidence that the Beneficiary received an award or prize from any of these 
organizations. 
Based on the above discussion, the Petitioner has not established that the Beneficiary meets this 
regulatory criterion. 
Evidence of the alien's original scientific, scholarly, or business-related contributions 
of major sign[ficance in the field. 8 C.F.R. § 214.2(o)(3)(iii)(B)(5). 
In order to satisfy this criterion, a petitioner must establish not only that a beneficiary has made original 
contributions but that they have been of major significance in the field. For example, it may support 
the record with evidence that a beneficiary's contributions have been widely implemented, have 
remarkably impacted or influenced the field, or have otherwise risen to a level of major significance 
in the field. 
On appeal, the Petitioner asserts that the Beneficiary "has made significant business contributions, as 
CEO at the helm of [the etitionin com any] since its inception in 2014," such as distribution of the 
petitioning comRan 's in mainstream grocery stores around the United St~ 
evidenced by th~----~contract previously submitted." Although the record shows thaL_J 
I I purchased an order of the Petitioner's! I in October 2018 in the amount of $29,165, 
the Pet1t10ner has not established how the Beneficiary's distribution ofl I to I I 
constitutes a business-related contribution of major significance in the field. 
The Petitioner also asserts that the Beneficiar
1 
satisfies this criterion based on her "ongoing 
discussions with! 11 _ and'----------,------,-~ among others." 
It explains that "[a]s the world began to shut down due to concerns stemming from COVID-19, the 
[B]eneficiary had just signed an NDA for ~ll.LL.1.!.1.1.1..1..l..!JLJ....J,JLIJ,ll,<..l.1.IJ."2.l.l..!~.J.l..L...J.J..!4 existing and new products 
with! !executed a Form W-9 with to begin work together, and 
had resumed conversations with.__ ___ ____.distributors," which it asserts "demonstrates the market 
gap being filled by [the Beneficiary's] innovative culinary offerings." The Petitioner further provides 
that the Beneficiary "is proactively creating a new line ofl I which "are sure to make a 
positive impact upon the culinary offerings market," and that these "latest concoctions are undoubtedly 
each a business-related contribution of major significance in the field." 
On appeal, the Petitioner submits an affidavit from the Beneficiary, in which she ex lains that her 
company is "adding al I to our offerings" and that "[ e ]very flavor of the offers 
different remedies and functional benefits through '--------------------' ayurvedic spices benefitting health." The Petitioner also orovides emails 
._p_e_rt_a_i_n-in_g_t_o_d_i_s-cu_s_s__.ions the Beneficiary had with representatives o±i ll I 
and! • I to sample and order herl I We note, however, that the emails 
show that the Beneficiary entered discussions witH I in November 2019, but no distribution 
agreement was reached as of the date when the petition was filed in December 2019. In addition, the 
Beneficiary's discussions withl I and'-----------.--- ..... took place in 
February and March 2020, after the date when the petition was filed. The Beneficiary's distribution 
discussions regarding herl I and development of a new product line o~ I therefore, 
5 
pertain to possible future contributions. The Petitioner must establish that all eligibility requirements 
for the immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). 
As further evidence in support of this criterion, the record contains several testimonial letters from the 
Beneficiary's colleagues, mentors, and investors attesting to her business contributions. 3 For instance, 
the Petitioner provided an expert report froml I associate professor of hospitality and 
tourism management atl O ,I who states that the Beneficiary'~ I were favorably 
reviewed in a March 2018 article in Nosh.com titled I I I ~,, and featured in Trend Hunter's 2 0 I 9 Trends Report as being representative of a new 
megatrend in the I I category in which 
I I. "'4 He praises her "development of [an] acclaimed food service 
enterprise - from concept through successful management." 
.__ ____ _.la food indust executive and entrepreneur with whom the Beneficiary consulted on 
sales strategy forL...-_.,-------,......J indicates the Beneficiary created "a digital storefront" and 
designed "a specialized.__ _____ process" for herl I which she asserts are a "top of the line 
product .... now seeing national distribution."! I a professional advisor in the food 
and beverage industry, indicates she has supported and mentored the Beneficiary in the development 
of her specialty food line I I which she asserts "is on the way to becoming a huge 
success." She provides that the Beneficiary "has created a significant and original culinary product" 
and perfected! I process." 
1=============-l .:..:..a..1:p..:..ro..:...f::...:e:.;:;ssor of hospitality administration who first met the Beneficiary at the 
.__ ___________ _,[ states thatl I "fills a unique place in the specialty 
frozen dessert market here in the United States" and has had "a remarkably successful entree into an 
exceptionally competitive market."! I a hotel and restaurant industry professional, 
provides tha~ I will be "switching to a new distribution model ( direct to customer 
versus through large corporate clients) to improve profitability and grow market share." I I 
a hospitality industry professional, praises the Beneficiary's "innovative online delivered specialty 
food product" and her "uniquel I product." 
Here, the letters do not explain how the Petitioner's culinary talent is recognized as an original 
contribution of major significance in the field. Having a diverse or unusual skillset does not equate to 
an "original contribution." In addition, the authors' assertions do not explain who is using the 
Beneficiary's I I process or otherwise describe how her product preservation techniques 
have been implemented throughout the field. The record does not contain additional evidence 
indicating that others in the culina7 field have widely relied on her techniques. Further, as noted by 
the Director, although I mentions that the Beneficiary's new distribution model of having 
her frozen desserts shipped directly to customers would improve the Petitioner's profitability he does 
not assert or explain how that distribution model constitutes an original contribution of major 
significance to the field. Demonstrating ability as a skilled entrepreneur is not itself a contribution of 
major significance; rather, the Petitioner must demonstrate that the Beneficiary has impacted the field 
3 While we discuss a sampling of these letters, we have reviewed and considered each one. 
4 We note that the record before us does not contain the Trends Hunter aiticle referred to byl.__ ___ _, 
6 
as a whole. Cf Visinscaia v. Beers, 4 F. Supp. 3d 126, 134-135 (D.D.C. 2013) (upholding a finding 
that a ballroom dancer had not met a similar criterion in the regulations pertaining to immigrants of 
extraordinary ability because she did not demonstrate her impact in the field as a whole). Without 
additional detail explaining the Beneficiary's accomplishments relating to new or innovative 
techniques, the record does not adequately demonstrate her work's significance to the greater culinary 
or business fields. 
The record does not include documentary evidence showing the widespread implementation of the 
Beneficiary's work, that it has been seminal, or that it otherwise equates to an original contribution of 
major significance in the field. USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter o_f Caron International, 19 I&N Dec. 791, 795 (Comm'r 
1988). However, USCIS is ultimately responsible for making the final determination regarding an 
individual's eligibility for the benefit sought. Id. Upon review, the preceding letters of 
recommendation demonstrate that the Beneficiary's work has earned the respect and admiration of 
those with whom she has worked and collaborated, but these letters do not establish that she has made 
original business contributions of major significance in her field. Accordingly, the Petitioner did not 
demonstrate that the Beneficiary satisfies this criterion. 
Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation. 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(7). 
At issue for this criterion are the positions the Beneficiary was selected to fill and the reputation of the 
organization or establishment that selected her. The Petitioner asserts that the Beneficiary satisfies this 
criterion as its CEO, based on her having accomplished "distribution of [the petitioning company's] 
product in grocery stores across the country on behalf orl 1"5 In the aforementioned 
affidavit from the Beneficiary offered on appeal, she explains that "before COVID-19 struck, we were 
in discussions withl land two of the biggest catering companies in the U.S.I I 
I I and they were going to place orders. We were at the brink of major 
success .... It's a small start-up but was on the brink of taking it to the next level." 
While we acknowledge that the Beneficiary was employed in a critical or essential capacity for the 
petitioning organization, we agree with the Director's determination that the record does not contain 
evidence sufficient to establish the distinguished reputation of the Petitioner as a company. While the 
Petitioner submitted evidence that its new specialty food lin~ I was positively reviewed 
by various sources at its launch, this does not constitute evidence regarding the Petitioner's reputation. 
While the Beneficiary's services appear to be critical to the petitioning company based on her creations 
in the culinary development field, the Beneficiary also indicates that the Petitioner presently is a small 
start-up "on the brink of taking it to the next level," reflecting that the petitioning company has not been 
able to establish its distinguished reputation given its current stage of development. 
5 The Petitioner previously claimed thjt the Beneficiary also mers this criterion based DD her roles between 1998 and 2004 
as manager of thel I, the~------~,I ~estaurand I and the 
I I restaurant. On appeal, the Petitioner claims eligibility based on the Beneficiary's role with the 
petitioning organization and does not address these other roles in hospitality entrepreneurship. 
7 
Based on the foregoing, the Petitioner has not established that the Beneficiary fulfills this criterion. 
B. Discrepancies and Ineffective Assistance 
The Director further found that the record contained unresolved discrepancies re arding whether a 
submitted article titled'----..----....,,....-,,------=--~--------,,-----' existed on the 
MSNBC online platform. The Director did not make a finding that the Petitioner committed fraud or 
willfully misrepresented material facts. Rather, the Director found that questions about the veracity 
of the article undermined the Beneficiary's credibility. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). On appeal, the Petitioner has not addressed the irregularities raised by the Director. Because 
we have already concluded that the Petitioner cannot fulfil the initial evidentiary requirement of three 
criteria under 8 C.F.R. § 214.2(o)(3)(iii)(B), we reserve this issue. 6 
Finally, we note that in the appeal brief' s Table of Contents, new counsel asserts that the Petitioner is 
providing documentation, including the Beneficiary's affidavit and email correspondence between the 
Beneficiary and prior counsel, "evidencing the wrongful advice [the Beneficiary] received to file [the 
instant] petition alongside her renewal application." 
The Board of Immigration Appeals established a framework for asserting and assessing claims of 
ineffective assistance of counsel. See Matter o_f Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 
10 (1st Cir. 1988). 
First, Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the petitioner attesting to the relevant facts. The affidavit should provide 
a detailed description of the agreement with former counsel (i.e., the specific actions that 
counsel agreed to take), the specific actions actually taken by former counsel, and any 
representations that former counsel made about his or her actions. 
• Evidence that the petitioner informed former counsel of the allegation of ineffective assistance 
and was given an opportunity to respond. Any response by prior counsel ( or report of former 
counsel's failure or refusal to respond) should be submitted with the claim. 
• If the petitioner asserts that the handling of the case violated former counsel's ethical or legal 
responsibilities, evidence that the petitioner filed a complaint with the appropriate disciplinary 
authorities ( e.g., with a state bar association) or an explanation why the petitioner did not file 
a complaint. 
Id. at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate ineffective assistance claims and to deter meritless claims. Id. 
Allowing former counsel to present their version of events discourages baseless allegations, and the 
6 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). 
8 
requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with their client in disparaging the quality of the representation. 
We may deny a claim of ineffective assistance if any of the Lozada threshold documentary 
requirements are not met. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). 
In this instance, the Petitioner has not met all of the above conditions ( and the appeal includes no 
explicit reference to Lozada). While the appeal includes an affidavit from the Beneficiary, the record 
does not show that any complaint has been filed. New counsel does not say whether or not she has 
advised prior counsel of the allegations of misconduct. Based on the above, the Petitioner has not 
established a claim of ineffective assistance of counsel. 
III. CONCLUSION 
The record supports the Director's determination that the Petitioner did not establish that the 
Beneficiary qualifies as a foreign national with extraordinary ability in the business. Accordingly, the 
Director properly revoked the approval of the petition. 
ORDER: The appeal is dismissed. 
9