dismissed O-1B Case: Culinary Arts

idenfifflq data deb&l to 
prevent e1earIy uaw&rsgW 
bvaadon of 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Room A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 05 100 50633 Office: TEXAS SERVICE CENTER Date: Nl 1 0 2005 
PETITION: Petition for Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 l(a)(lS)(O)(i) 
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. 
I 
wobert P. Wiemann, Director 
Administrative Appeals Office 
SRC 05 100 50633 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Texas Service Center Acting Director and is 
now before the Administrative Appeals mice (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a publishing company. The beneficiary is a chef. The petitioner seeks 0-1 classification of the 
beneficiary as an alien with extraordinary ability in the arts under section 10 ](a)(] 5)(0)(i) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 3 1101(a)(15)(0)(i), in order to employ him as a chef for three years at an 
annual salary of $30,000. 
The director denied the petition, finding that the petitioner had failed to establish that the beneficiary satisfies the 
standards for classification as an alien with extraordinary ability in the arts. 
On appeal, counsel for the petitioner submits a brief and additional evidence. 
Section IOl(a)(15)(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 beneficiary is a 39-year old native and citizen of Germany. He completed his studies at the College of 
Nutrition, School of Social Studies, located in Solingen, Germany in June 1983. He was certified as a chef on 
July 15, 1986 in Diisseldorf, Germany. The beneficiary worked as an apprentice fi-om August 1984 to July 1986 
with the Stockheim Company in Diisseldorf. Over a twenty-year career, he has worked as a Chef Entremetier, 
Chef Saucier, Chef de Partie and Sous Chef at various hotels and restaurants in Switzerland, Germany, Cayman 
Islands, Austria and Aspen, Colorado. The beneficiary last entered the United States in H-1B classification to 
work at The Little Nell in Aspen, Colorado on December 7,2001. 
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary qualifies 
as an alien with extraordinary ability in the arts as defined by the statute and the regulations. 
The regulation at 8 C.F.R. 3 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the Jield of arts means distinction. Distinction means a high level of 
achievement in the arts evidenced by a degree of skill and recognition substantially above that 
ordinarily encountered to the extent that a person described as prominent is renowned, leading, 
or well-known in the field of arts. 
The regulation at 8 C.F.R. 3 214.2(0)(3)(iv) states that in order to qualify as an alien of extraordinary ability in the 
arts, the alien must be recognized as being prominent in his or her field of endeavor as demonstrated by the 
following: 
(A) Evidence that the alien has been nominated for, or has been the recipient of, significant 
national or international awards or prizes in the particular field such as an Academy Award, an 
Emmy, a Grarnrny, or a Director's Guild Award; or 
(B) At least three of the following forms of documentation: 
(1) Evidence that the alien has performed, and will perform, services as a lead or starring 
participant in productions or events which have a distinguished reputation as evidenced by 
SRC 05 100 50633 
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critical reviews, advertisements, publicity releases, publications, contracts, or endorsements; 
(2) Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or about 
the individual in major newspapers, trade journals, magazines, or other publications; 
(3) Evidence that the alien has performed, and will perform, in a lead, starring, or 
critical role for organizations and establishments that have a distinguished reputation 
evidenced by articles in newspapers, trade journals, publications, or testimonials; 
(4) Evidence that the alien has a record of major commercial or critically acclaimed 
successes as evidenced by such indicators as title, rating, standing in the field, box 
office receipts, motion picture or television ratings, and other occupational 
achievements reported in trade journals, major newspapers, or other publications; 
(5) Evidence that the alien has received significant recognition for achievements from 
organizations, critics, governmental agencies, or other recognized experts in the field in 
which the alien is engaged. Such testimonials must be in a form which clearly indicates the 
author's authority, expertise, and knowledge of the alien's achievements; or 
(6) Evidence that the alien has either commanded a high salary or will command a high 
salary or other substantial remuneration for services in relation to others in the field, as 
evidenced by contracts or other reliable evidence. 
For criterion number two, the petitioner submitted three items. The first item, published in the January 1, 2003 
issue of the American Wq, an in-flight publication of American Airlines, briefly reviews 4 restaurants, including 
The Colony, a restaurant, which "hired former Little Nell sous-chef [the beneficiary] to navigate the kitchen." 
The second item, published in the December 2002 issue of Bon Appktit, includes a photograph of the beneficiary 
and a review of The ~olon~,' touting the beneficiary as its chef. These items indicate that the beneficiary has 
some received some publicity based upon his own and his employer's reputation. They do not mention the 
beneficiary's achievements however; hence, the beneficiary does not satisfy this criterion. A third item, titled 
"Chef Michael from the Colony Featured in Bon Appktit," fails to include the name or date of publication so it 
cannot be considered. 
For criterion number three, the petitioner submitted several critical reviews and numerous letters2 written by 
persons employed in the beneficiary's field of endeavor. The letters were all written by former or prospective 
employers, e.g., the petitioner. 
~irector of Human Resources, The Little Nell, wrote that the beneficiary was Executive 
Sous-Chef at The Little Nell from May of 1998 until May 2002. She wrote that the beneficiary has achieved 
national and international recognition for his achievements and worked in a critical role for establishments 
that have distinguished reputations. She failed to describe the beneficiary's achievements. She said that the 
beneficiary "played a critical role from his expertise as the Chef de Partie to leadership skills." She failed to 
fblly explain how the beneficiary played a critical role at The Little Nell. 
- - -- 
1 The Colony was then a newly opened restaurant in Aspen, Colorado. 
2 The term letter is used interchangeably with testimonial. 
SRC 05 100 50633 
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Director of Sales and Marketing, The Little Nell, reiterate 
achieved national and international recognition for his rther wrote that 
the beneficiary "worked in Chef for The Little Nell's restaurant Montagna and also 
assisted with special events. d to explain how the beneficiary, as a Sous Chef, played a 
lead role at Montagna. 
eneral Manager, Aspen Mountain Club, wrote that the beneficiary "assisted in creating 
and menus and special events . . . trained the culinary staff to meet high standards, 
which Fesulted inexcellent presentation and quality." She credited him as helping "to establisk the Club as 
one of the top in the nation-ndicated that the Aspen Mountain Club is under the management 
of The Little Nell and that the beneficiary consulted with her organization. The evidence is insufficient to 
establish that the food facility at the Aspen Mountain Club has a distinguished reputation. 
Resources Director for The Little Nell Hotel in Aspen and the area director of Human 
Hotel in Avon Colorado wrote two testimonials on the beneficiary's behalf. 
His first letteisated November 3,2000, outlines the beneficiary's work history. In a second letter, dated June 
': 3, 2005-s that the beneficiary "has been an integral icon and driving force in [the Aspen 
Food an Wine summer festival1 . . . over the past five years." The vetitioner failed to submit anv 
dorroborating documentary evidence regarding this festival and the beneficiary's involvement. Simply goin;: 
on record without supporting documentary evidence is not sufficient for the purpose of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
General Manager, Hotel Gasthof Post, Austria, wrote that the beneficiary had worked 
s a sous chef for approximately eleven months. 
Hotel Manager and Owner, Hotel Alpenhof, S,witzerland, wrote in a letter dated November 
beneficiary "oversaw the kitchen operations for [their] upscale fine dining restaurant and 
- - 
banquet facility." 
Corporate Executive Chef, Seabourn Cruise Line, wrote that the beneficiary worked under his 
mn the Seabourn Pride "as a sour chef and chef? 
All of the above letters were written by persons associated with the beneficiary's former employers or his 
prospective employer, the petitioner. While such letters are important in providing details about the 
petitioner's role in various organizations, they cannot by themselves establish the beneficiary has achieved 
distinction in his field of endeavor. 
It is noted that the beneficiary has typically held secondary positions such as sous chef and chef de partie, 
rather than the principal position of a chef de cuisine. 
As evidence that the beneficiary will play a lead role in the hture, the petitioner's Chairman and CEO 
indicates that the beneficiary "will work in a lead role as Chef for [the petitioner], preparing special meals and 
dining experiences for very distinguished guests at small and large dinner gatherings." The petitioner failed 
to submit any evidence to establish that the petitioner, a publishing company, is an organization with a 
distinguished reputation. The evidence is insufficient to establish that the beneficiary, as a chef, will play a 
lead role for the petitioner. The beneficiary does not satisfy this criterion. 
SRC 05 100 50633 
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For criterion number four, the petitioner submitted letters and three published items that are discussed above. 
While this evidence is favorable to the beneficiary, they do not establish that the beneficiary has a record of major 
commercial or critically acclaimed successes as required by the regulation. The beneficiary does not satisfy this 
criterion. 
For criterion number five, the petitioner submitted letters. As indicated above, the letters fail to establish that the 
beneficiary has received significant recognition for his achievements. The beneficiary does not satisfy this 
criterion. 
The petitioner has offered to pay the beneficiary an annual salary of $30,000. In the absence of wage surveys, the 
AAO is unable to evaluate whether the proffered wage may be considered high in relation to others in the 
beneficiary's field of endeavor. 
After a careful review of the entire record, it is concluded that the petitioner has not shown that the beneficiary is 
a person of extraordinary ability in the arts. 
Counsel for the petitioner asserts "the Service has abused its discretion by inexplicably departing from its own 
regulations, failing to consider all relevant factors, and considering irrelevant facts in its stated reasons for 
denial of the petition." Counsel quoted the director's decision, i.e., "the denial states: '[tlhe record does not 
reflect any evidence to show how the beneficiary's work as a chef is different from others chefs at other 
facilities."' Counsel states that the regulations do not require the petitioner to show how the beneficiary's 
work as a chef is different from other chefs at other facilities. The regulations do require a showing that the 
beneficiary has achieved distinction in his field of endeavor. See 8 C.F.R. 8 214.2(0)(3)(ii), supra. The 
director did not depart from the regulations. 
Counsel further asserts that the director abused its discretion by failing to consider all factors. The director 
correctly evaluated the evidence in the context of the relevant eligibility criteria at 8 C.F.R. 5 214.2(0)(3)(iv). 
The AAO considered all of the evidence in the record, even if it failed to mention every item of e~idence.~ 
Beyond the director's decision, the petitioner failed to submit a consultation as required by the regulation at 8 
C.F.R. 3 214.2(0)(5)(i). Counsel for the petitioner wrote that the petitioner was requesting a waiver of the 
advisory opinion (consultation) requirement because there is no appropriate peer group or labor organization 
for the position offered; however, Citizenship and Immigration Services (CIS) has consistently required chefs 
to submit consultations from the American Culinary Federation. There is no evidence of the consultation. 
For this additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. 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); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
3 The petitioner submitted a letter dated February 1 1, 1999 from Daniel Boulard, which addresses the issue of whether an 
Executive Chef is a specialty occupation. This letter is not relevant in the context of an 0-1 petition. 
SRC 05 100 50633 
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sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.