dismissed O-1B Case: Culinary Arts

identifying data deleted to 
revent clearly unw~ted P . n of personal pnvac}' . mvasl0 
. PUBLICCOPY 
FILE: Office: VERMONT SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeiand 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 Imlnigration 
Services 
Date: FEB 1 5 2011 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(l5)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § 1101(a)(l5)(O)(i) 
ON BEHALF OF PETITIONER: SELF -REPRESENTED 
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 ~uch 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 
; 
I ~ 
Page 2 
DISCUSSION: The Director, Vermont Service Center, initially denied the petition for a nonimmigrant visa 
as abandoned pursuant to 8 C.F.R. § 214.2(b)(13), based on the petitioner's failure to respond to a request for 
additional evidence. The director granted the petitioner's subsequent motion to reopen and denied the petition 
based on the merits of the case. 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. classify the beneficiary 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 the arts. The petitioner, which is self-described as a restaurant, catering and food 
consulting business, seeks.to hire the beneficiary in the position of senior chef for a period of two years. 
The director denied th~ petition, concluding that the petitioner failed to establish that the beneficiary qualifies as 
an alien of extraordinary ability in the culinary arts. The director. determined that the petitioner failed to establish 
that the beneficiary meets the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(A), and submitted evidence to 
satisfy only oq.e of the six evidentiary criteria set forth at 8 C.F.R. § 214.2(0)(3)(iv)(B), of which three must be 
met to establish eligibility. The director further found that the petitioner failed to submit the required advisory 
opinion from an appropriate peer group or association with expertise in the beneficiary's field. 
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, the petitioner contends that the director "denied the petition for 
minor reasons; each having no statutory or regulatory support under the Immigration Laws." The petitioner 
submits a brief and additional evidence in support of the appeal. 
I. TheLaw 
Section 101(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 regulation at 8 C.F.R. § 214.2(0)(3)(ii) defmes, in pertinent part: 
Arts includes any field of creative activity or endeavor such as, but not limited to, fme arts, visual 
arts, culinary arts, and performing arts. 
Extraordinary ability in the field 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. § 214.2(0 )(3)(iv) states, in pertinent part: 
c 
'i 
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~.- .--.,-..... ,-~----
Evidentiary criteria for an 0-1 alien of extraordinary ability in the arts. To qualify as an alien 
of ~xtraordinary ability in the field of 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 the recipient of, significant nation~l 
or international awards or prizes in the particular field such as an Academy Award, an 
Emmy, a Grammy, or a Director's Guild Award; or 
l (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 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, government 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; or 
(C) If the criteria in paragraph (0)(3)(iv) 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 4 
Additionally, the regulation at 8 C.F.R. § 214.2(0)(2)(iii) provides: 
The evidence submitted with an 0 petition shall conform to the following: 
(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the 
alien's achievement and be executed by an officer or responsible person employed by the 
institution, firm, establishment, or organization where the work was performed. 
(B) Affidavits written by present or 'former employers or recognized e~perts certifying to the 
recognition and extraordinary ability ... shall specifically describe the alien's recognition 
and ability or achievement in factual terms and set forth the expertise of the affiant and the 
manner in which the affiant acquired such information. 
The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent upon the 
quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the 
petitioner has submitted evidence relating to three of the criteria as required by the· regulation does not 
necessarily establish that the alien is eligible for 0-1 classification. 59 Fed Reg at 41820. 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two-part approach set forth 
in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. USCIS, 2010 WL 
725317 (9th Cir. March 4, 2010). Similar to the regulations governing this nonimmigrant classification, the 
regulations reviewed by the Kazarian court require the petitioner to submit evidence pertaining to at least three 
out of ten alternative criteria in order to establish a beneficiary's eligibility as an alien with extraordinary ability. 
Cj 8 C.F.R. § 204.5(h)(3). 
Specifically, the Kazarian court stated that "the proper procedure is to count the types of evidence provided 
(which the AAO did)," and ifth~ petitioner failed to submit sufficient evidence, "the proper conclusion is that the 
applicant has failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id 
at *6 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as the corollary 
to this procedure: 
If a petitioner has submitted the requisite .evidence, US CIS determines whether the evidence 
demonstrates both a "level of expertise indicating that the individual is one of that small 
percentage who have risen to theyery top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), 
and "that the alien has sustained national or international. acclaim and that his or her 
achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only aliens 
whose achievements have garnered "sustained national or international acclaim" are eligible for 
an "extraordinary ability" visa. 8 U.S.C. § I I 53(b)(l)(A)(i). 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying under at 
least three criteria, considered in the context of a [mal merits determ,ination. The final merits determination 
analyzes whether the evidence is consistent with the statutory requirement of "extensive documentation" and the 
\ 
I 
I, 
Page 5 
regulatory defmition of" extraordinary ability" as "one of that small percentage who have risen to the very top of 
the field of endeavor." ./ 
The AAO fmds the Kazarian court's two-part approach to be appropriate for evaluating the regulatory criteria set 
forth for 0-1 nonimmigrant petitions for aliens of extraordinary abpity at 8 C.F.R. § 214.2(0 )(3)(iii), (iv) and (v). 
Therefore, in reviewing Service Center decisions, the AAO will apply the test set forth inKazarian. As the AAO. 
maintains de novo review, the AAO will conduct a new analysis if the director reached his or her conclusion by 
using a one-step analysis rather than the two-step analysis dictated by the Kazarian court. See Sollane v. DOJ, 
381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis). 
In the present matter, the petitioner has failed to submit evidence that satisfies three of the evidentiary criteria at 8 
C.F.R. § 214.2(0)(3)(iv)(B), and has not established that the beneficiary has a high level of achievement in the 
arts evidenced by a degree of skill arid recognition suJbstantially above that ordinarily encountered to the extent 
that she is prominent, renowned, leading, or well-known in the field or culinary arts. ·8 C.F.R. §§ 214.2(0 )(3)(ii). 
n. Discussion 
A. Procedural History 
The beneficiary in this matter is a native and citizen of India who has been in the United States in H-4 
nonimmigrant status since August 2002. The petitioner, a restaurant, filed Form 1-129, Petition for a 
Nonimmigrant Worker, on October 8, 2009. In a letter dated October 5, 2009, the petitioner described the 
beneficiary'S background and qualifications in the culinary arts as follows: 
[The beneficiary] is a individual of extraordinary ability in the culinary arts. Her reputation 
in this category is marked by evidence from statements of her peers, and likewise, from 
evidence of either training or working in locally or internationally recognized eating 
establishments ranked either in the "Top 50" or ranked as "Best restaurant[s] in the Asia" 
under star chefs of extraordinary ability. ~he has worked under world renowned_ 
cook or train within these establishments, one must be 
of extraordinary ability[.] 
[The beneficiary] pursued a 3-year program of study at Pusa Institute of Hotel management, 
New Delhi, India. During her studies, [the beneficiary] received practical training in Cuisine 
in Indi~n kitchen at Taj Hotel, New Delhi, India. After completion of her studies she joined 
~ Mumbai, India to work under world renowned 
____ PV'~{,II~".'P Chef ofthe establishment. Later on she moved 
back to Delhi to work for in one of their best restaurant[s] in Asia "Bukhara." 
The petitioner stated that the beneficiary ~ould work in its restaurant in the position of chef under_ 
The petitioner stated that she would be assisting "in planning, preparing and artfully 
displaying a variety of high end menu selections," as well as performing the following duties: 
", 
Page 6 
Additional duties will include organlzmg, overseeing the booking for executive dining 
reservations alld confinning reservations 24 hours prior. Scheduling and coordinating the 
work of kitchen and pantry employees to ensure that food preparation is economical, 
technically correct and keeping with a standard of excellence. Directing regular physical 
inventory of food supplies, and assessing projected needs; directing the ordering of food, 
supplies flnd ensuring that high standards of sanitation and cleanliness are f!1aintained in the 
kitchen area at all times; establishing and maintain controls to ize food and supply 
waste. Assisting with Partistry (www.partistry.com). creations and [the 
petitioner's] online extension devoted to confectionary matters such as wedding cakes, 
chocolates, etc. 
The petitioner's supporting evidence related primarily to the reputation of the petitioner's restaurant and i!s 
executive chef, With to the· qualifications, the I.J~L'L1"'Il\'" 
from 
The petitioner did not provide evidence of the beneficiary's culinary training, her resume, or letters from her prior 
employers corroborating the infonnation provided in its· initial letter with respect to her educational and 
professional background. 
The director issued a request for additional evidence ("RFE") on November 18, 2009, in which the director 
addressed the insufficiency of the initial evidence. The director instructed the petitioner to submit evidence to 
meet the evidentiary criteria for aliens of extraordinary ability in the arts pursuant to 8 C.F.R. § 
214.2(0)(3)(iv)(A) or (B), as well ~ a written consultation from an appropriate association, peer group or labor 
organization with expertise in the beneficiary's area of expertise. 
The director initially denied the petition on March 15,2010, concluding that the petitioner failed to respond to the 
RFE by the stated deadline of February 13, 2010. The director advised the petitioner that the petition was 
therefore considered abandoned and denied pursuant to 8 C.F.R. § 103.2(b)(14). 
, ' The petitioner subsequently filed a motion to reopen in which it provided evidence that it had submitted a timely 
response to the RFE on or about January 15,2010. The director reopened the matter to fldjudicate the petition on 
its merits. The director affinned the denial of the petition, noting that the petitioner: (1) failed to submit evidence 
to satisfy the evidentiary criteria at 8 C.FR § 214.2(0)(3)(iv)(A) or (B); and (2) failed to submit the required 
advisory opinion from a peer group with expertise in the beneficiary's area of extraordinary ability. 
B. The Beneficiary's Eligibility under the Evidentiary Criteria 
The first issue to be addressed is whether the petitioner submitted evidence to establish that the beneficiary 
satisfies the evidentiary criterion at 8 C.F.R. 214.2(0 )(3)(iv)(A), or at least three of the six criteria set forth at 8 
C.F.R. § 214.2(0)(3)(iv)(B). In denying the petition, the director detennined that the evidence submitted meets 
none of these criteria. After careful review of the record, it must be concluded that the petitioner has failed to 
overcome the grounds for denial. 
I I. 
Page 7 
The AAO emphasizes that submitting evidence to 'satisfy the evidentiary criteria will not automatical}y 
establish eligibility for this visa classification. The mere fact that the petitioner has submitted evidence 
relating to three of the criteria as required by the regulation does not necessarily establish that the alien is 
eligible for 0-1 classification. 59 Fed Reg 41818,41820 (August 15, 1994). 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has been 
nominated for or has been the recipient of, significant national or international awards or prizes in the particular 
field pursuant to 8 C.F.R. § 214.2(0)(3)(iv)(A), then it will meet its burden of proof with respect to the 
beneficiary's eligibility for 0-1 classification. The regulation lists an Academy Award, an Emmy, a Grarnmy, or 
a Director's Guild award as examples of qualifying significant awards or prizes. 
The petitioner indicates that "the beneficiary has received a nationally recognized award of distinction," but did 
not specifically indicate whether it was claiming eligibility under 8 C.F.R. $ 214.2(0)(3)(iv)(A). In support of this 
Claim, the petitioner submits a letter dated February 22, 2001 from the Government of India, Ministry of Tourism. 
The letter is addressed to the beneficiary arid congratulates her "on winning the Best Chef Award _ 
_ for the year 1999-2000." 
The petitioner stated that "this is also confirmed by nationally circulated newspaper articles on [the beneficiary] 
(Delhi Times, Saturday,.October 20,2001, _2000.'" The petitioner submitted the referenced article 
titled, "It's time to honour top chefs," which discusses the upcoming "International Chefs Day & 6th Chef Awards, 
a gala affair organized by the PHD Chamber of Commerce and Industry in collaboration with the Indian Culinary 
Forum, Indian Federation of Culinary Association and HT City, that aims to celebrate and award the immense 
pool of talented chefs in the country." The article indicates that a "high-level jury will select the best chefs across 
16 categories." The article includes a photograph and quote from the beneficiarY. The caption indicates that she 
is the executive chef of "Bukhara," and identifies her as "Master Chef 2000." 
Upon review, the petitioner has not established that either the Ministry of Tourism "Best Chef Award" or the 
"Master Chef 2000" awards received by the beneficiary are "significant national or jnternational awards or 
prizes" that rise to the level comparable to an Academy Award or Grammy Award, the examples provided in 
the regulations. The record contains insufficient evidence regarding the purpose of the awards, the 
application, nominating, or selection process used by the issuing bodies, the eligibility criteria, or the extent to 
which the winners of such awards are recognized beyond the issuing body. The winners and nominees of 
Emmy and Grammy awards, for example, receive significant national and international media attention as the 
. result of their recognition, and the awards themselves are considered among the highest achievements ; 
attainable in the performing arts. 
Without documentation to provide additional context regarding the beneficiary's awards within the scope of 
her profession, the AAO cannot conclude that the beneficiary's awards in the culinary field are regarded as 
comparable to, for example, an Academy award in the motion picture fie,ld. It is the petitioner's burden to 
establish how the submitted evidence establishes eligibility under the regulatory criterion. Furthermore, with 
respect to the "Master Chef 2000" award, the petitioner has not submitted primary evidence confirming the 
beneficiary's receipt of the award, such as a certificate or letter from the issuing body. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
Page 8 
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter afTreasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972». 
Accordingly, the petitioner has not established that the beneficiary has received or been nominated for a 
significant national or international prize or award that would qualify for her for 0-1 status under 8 C.F.R. § 
214.2(0)(3)(iv)(A). 
Therefore, the petitioner must establish the beneficiary's eligibility under at least three of the six criteria set forth 
at 8 C.F.R. § 214.2(0)(3)(iv)(B). The AAO will address these criteria below. 1 
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 
The petitioner submitted two newspaper clippings in an attempt to satisfy the criterion at 8 C.F.R. 
§ 214.2(0)(3)(iv)(B)(2). The petitioner indicates that both articles were published in Delhi Times in 2001, 
although we note that the name of the publication is only visible on one of the clippings. The first article, "It's 
time to honour top chefs," mentioned above, is not specifically "about the beneficiary," nor does the body of the . 
article mention the beneficiary. There is a small photograph of the beneficiary, with a caption that identifies her 
as "Master Chef 2000" and includes a one-line quote regarding the importance of awards as encouragement for 
young chefs. 
The second article, titled "This smells good!" is from the December 29,2001 edition of Delhi Times. The article 
mentions that the beneficiary participated in an "ongoing series of culinary Crest Experiences presented by The 
Crest Edition of the Times of India." The article mentions that the beneficiary "taught authentic South Indian 
delicacies like Banana Dosa, Keira Mashiyal and Eleneer Payasam to the guests." The article merely confirms 
that the beneficiary was invited to perform a cooking demonstration. 
The AAO cannot conclude that these two brief mentions of the beneficiary in a newspaper provide evidence of 
her national or international recognition for achievements in the culinary arts. Therefore, while the AAO 
disagrees with the director that "no evidence" was submitted that pertains to the criterion at 8 C.F.R. § 
214.2(0 )(3)(iv)(B)(2), we concur that this criterion has not been met. 
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. 
In response to the RFE, the petitioner stated: 
As evidence the' beneficiary has performed services in the culinary arts in a critical role enclosed 
please find a news paper article from the Delhi Times dated December 29,2001 acknowledging 
the contributions of [the beneficiary] during the Crest Fiestas held in India at the Sheraton 
I The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 9 
Bukhara Restaurant - a highly prominent restaurant in New Delhi, India which is a part of the 
Sheraton Hotel. During this position, [the beneficiary] held the position of Master Chef. See 
article from Delhi Times dated October 20, 2001 (noted previously), quoting [the beneficiary]. 
See also, Bukhara Restaurant, Wikipedia, recognizing the popularity of the restaurant, its 
visitation by recognized celebrities _, l1li, to name a few), and its accolades over 
the years, including during the tenure ofthe beneficiary (1998-2002), when the restaurant was 
named in the World's 50 Best Restaurants in 2002-2004. Moreover, the beneficiary is being 
asked to perform services as Chef for [the petitioner], which is an extremely popular restaurant 
in New York City as illustrated in the articles previously submitted. To clarify the beneficiary's 
role as cheffor [the petition~r], please be advised that she will take on the role as Executive Chef 
in my absence, as I seek expansion. I am therefore seeking not just any chef, but one who will 
be able to sustain the reputation that [the petitioner] has grown 'to achieve. She will therefore 
perform in a critical role for [the petitioner's] restaurant." 
I , 
, The regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B)(3) requires the petitioner to submit evidence that the beneficiary 
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 
With respect to the beneficiary'S previous employment, thr petitioner initially indicated that t~ 
received "practical training" later worked at Centaur Hotel in Mumbai under _ 
_ and fmally, worked at the Bukhara restaurant at the Sheraton Maurya Hotel in New Delhi. The petitioner 
provided no specific dates or job titles with respect to the beneficiary'S employment history, no evidence of her 
academic qualifications, no resume, and no letters from her former employers verifying her qualifications., 
However, the evidence of record appears to confmn that the beneficiary held the title of executive chef at the ' 
Maurya Sheraton hotel's restaurant "Bukhara" as of 200 1. 
The petitioner submitted two testimonial letters in support of the petition. 
_states: 
An independent review of [the beneficiary's] career shows a remarkable level of progression and 
success._Beforejoining Hotel Maurya, Bukhara Restaurant in 1998-2002, a rated among top 10 
in Asia, she worked with Centaur, Mumbai under the World reno~ed Indian Chef _ 
_ where she perfected and developed her own style of cooking from 1992 till 1998. 
The petitioner also submitted a letter from and _, who state that they are co-executive 
chefs at Devi Restaurant in New York. They indicate that the benefic· "has worked as a chef with renowned 
restaurant and eating establishments Bukhara, in India and with . India." _and 
_ later submitted a statement clarifying that their information was based on "conversations with [the 
beneficiary], a review of her documentation, conversations with " 
Finally the petitioner submitted a Wikipedia article about "Bukhara (restaurant)." Regarding the informatio~ 
from Wikipedia, there are no assurances about the reliability of the content from this open, user-edited internet 
Page 10 
site? See Lami/em Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). Therefore, this evidence is 
insufficient to establish that the restaurant Bukhara enjoyed a distinguished reputation during the beneficiary's 
tenure as executive chef. 
_assertion that Bukhara is rat~d 10 restaurants in Asia is not supported by evidence 
of any such rankings, and _and letter merely refers to the restaurant as a "renowned 
restaurant and eating establishment." IfBukhara is in fact considered to be one of the top restaurants in Asia, 
the AAO finds it reasonable to expect the petitioner to provide evidence of its distinguished reputation in the 
form of published materials about the restaurant and detailed testimonials. A Wikipedia article, vague 
assertions regarding the restaurant's renown, and unsupported references to the restaurant's rankings are 
insufficient to establish the distinguished reputation of the establishment. 
As for her employment with Centaur restaurant in Mumbai, the petitioner has neither indicated nor submitted 
evidence that the beneficiary held a leading role with this restaurant or established that the restau~ant enjoys a 
~utation: Rat~er, the petitioner indicates t~at the beneficiary ~orked u~der ex~cuti~e chef 
____ who IS claImed to be a renowned IndIan chef. The petItIoner faded to IdentIfy the 
beneficiary's job title during her tenure with the restaurant, and submitted no evidence regarding the . 
distinguished reputation of the restaurant. Based on the foregoing, the evidence does hot support a conclusion 
that the beneficiary was previously employed in a leading or critical role for this organization or establish that 
Centaur restaurant has a distinguished reputation. '. . 
Although the persons providing testimonials indicate that the have reviewed the beneficiary's "documents," 
we emphasize that the petitioner has not provided USCIS with a copy of the beneficiary's resume, educational \ . 
qualifications, or letters from her prior employers confirming her dates of employment, job titles and duties 
and any other pertinent information that would establish her claimed critical roles with these Indian 
restaurants. It is unclear exactly what documents were reviewed by the authors of the testimonial letters. 
With respect to the offered employment as a "chef" or "senior chef' with the petitioning restaurant, the AAO 
notes that the petitioner indicated very clearly at the time of filing that is the restaurant's 
executive chef, and that he requires a chef to assist him with various aspects of menu planning, organizing 
reservations, coordinating the work of kitchen and pantry employees, directing the inventory and ordering of 
2 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone with an 
I 
Internet connection to alter its content. Please be advised that nothing found here has necessarily 
been reviewed by people with the expertise required to provide you with complete, accurate or 
reliable information. . .. Wikipedia cannot guarantee the validity of the information found here. The 
content of any given article may recently have been changed, vandalized or altered by someone 
whose opinion does not correspond with the state of knowledge in the relevant fields. 
See http://en.wikipedia.orglwikilWikipedia:General_disciaimer, accessed on February 11, 2011, a copy of 
which is incorporated into the record of proceeding. 
Page 11 
food and supplies, and ensuring that sanitation standa~ds are met in the kitchen. The petitioner submitted 
sufficient evidence in the form of published reviews and other materials to establish that_nd the 
petitioning restaurant enjoy a distinguished reputation in the culinary field. 
In response to the RFE, in which the director noted that the petitioner already has an executive chef, the 
petitioner's president, stated: 
To clarify the beneficiary's role as Chef for [the petitioner], please be advised that she will 
take on the role as Executive Chef in my absence, as I seek expansion. I am therefore 
seeking not just any chef, but one who will be able to sustain the reputation that [the 
petitioner] has grown to achieve. She will therefore perform in a critical role for [the 
petitioner's] restaurant. 
The director denied the petition concluding that "no evidence has been submitted to show that the beneficiary . , 
will appear or perform as a lead participant at the restaurant, especially since there is already, an executive 
chef." The beneficiary concluded that the beneficiary would be assisting the executive chef, rather than acting 
in the lead role of executive chef herself. 
On appeal, the petitioner asserts that the director's conclu~ion was based on conjecture, and contends that the 
petitioner's statements should be accepted as evidence. Therefore, the petitioner asserts that "the evidence of 
record shows that the beneficiary will assume the position of executive chef in the place and stead of the 
undersigned, so that the undersigned can concentrate on pursuing expansion." The petitioner's letter on 
appeal is signed b~, who is identified on the Form 1-129 as the petitioner's president. 
/ 
Upon review, the AAO concurs with the director's conclusion that the beneficiary's offered position of "chef' 
or "senior chef' is not in fact the "executive chef' position at the petitioner's restaurant. The petitioner has not 
submitted sufficient evidence regarding the hit)rarchy of the petitioner's staff to establish that the proffered 
position could otherwise be considered leading or critical within the restaurant. 
The petitioner's assertion that it intends to hire the beneficiary as executive che~ fails for several reasons. 
First, the petitioner clearly stated at the time of filing that is the restaurant's executive chef 
and that the beneficiary is being hired to assist him with the restaurant's operations. All supporting evidence 
submitted to establish the restaurant's distinguished reputation establishes that _ is the executive 
chef. If the petitioner intended to hire the beneficiary as executive chef, then it is reasonable to assume that it 
would directly state this intention on the petition as of the date the petition was filed. The petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved 
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Further, a petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
/zummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Second, _who states that he is the petitioner's president, has twipe indicated that the beneficiary 
will take his own place as executive chef. Such statements were made after initial statement that 
•••• is the executive chef of the restaurant. Since is not the petitioner's executive chef, 
Page 12 
these statements are not persuasive.· If the petitioner wished to establish that the beneficiary would be taking 
over the executive chef role, then it would be reasonable to submit a letter from the current executive chef, 
•••• , indicating that the beneficiary would be assuming his current position. The petitioner has 
provided no such letter. 
While the petitioner contends that its statements must be accepted as evidence, it has clearly made conflicting 
statements regarding the nature of the beneficiary's proposed role within its restaurant. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner 
has submitted no such objective evidence, 'such as a copy of its written contract with the beneficiary, or, 
alternatively a written summary of the oral agreement under which she will be employed, and thus has no 
objective evidence to corroborate either of its conflicting claims regarding the beneficiary's proposed job title. 
For the foregoing r,easons, the petitioner has not submitted evidence to meet the criterion at 8 C.F.R. 
§ 214.2(0)(3)(iv)(B)(3). 
Eyidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field in wHich 
the alien is engaged Such testimonials must be in aform which clearly indicates the author's 
authority"expertise, and knowledge of the alien's achievements. 
As discussed above, the petitioner has provided two testimonial letters. _states that the beneficiary is 
"a highly-regarded professional who has risen to an expert level in his [sic] chosen field of chefdom." As 
noted above, _ summarized the beneficiary's employment with Bukhara restaurant and Centaur 
resta.urant between 1992 and 2002, and stated that "indicative of [the beneficiary's extraordinary ability is her 
selection to work and head their kitchen of these renowned eating establishments and the celebrated chefs 
behind them." states that the beneficiary has "risen to the top of her field of endeavor over the past 
several years." He states that his opinion was based on "an independent review of[the beneficiary's] career." 
_and refer to the beneficiary as "a leading chef of Indian cuisine," and "one of Indian's 
[sic] renowned chefs." They further, state that the beneficiary "has distinguished himself [sic] as a leader in 
her chosen field and her culinary accomplishments have been noted in the Indian press over the years." As 
noted above, and later submitted a' statement indicatirig that the basis of the 
information they provided included conversations with the beneficiary, a review of her documentation, and 
conversations with chef "who did verify that [the beneficiaryj ~ork [sic] with him and that 
her abilities as a chef were excellent." 
As discussed' above, the persons who provided letters indicate: that their knowledge of the beneficiary's 
achievements is based, at least in part, on a review of "her documentation." Again, we emphasize that it is 
unclear what "documentation" was provided to the authors. The record before the AAO contains no primary 
evidence ofthe beneficiary's educational or professional qualifications. While_and_ also 
state that they spoke to the beneficiary herself and one of her former employers, the opinions they formed 
Page 13 
based on these conversations cannot be given the same evidentiary weight as concrete evidence of her actual 
qualifications and employment history. ' 
With regard to the reference letters provided, we concede that reference letters can provide useful information 
about an alien's qualifications or help in assigning weight to certain evidence. However, the submitted reference 
letters did not specifically reference the beneficiary's achievements, but rather contain conclusory assertions that 
the beneficiary is "leading" or "renowned." In this case, the letters of recommendation submitted by the petitioner 
are not sufficient to meet this regulatory criterion. These letters,while not without weight, cannot form the 
cornerstone of a successful extraordinary ability claim. USCIS may, in its discretion, use as advisory opinion 
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 
1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's 
eligibility for the benefit sought. Id The submission of letters of support from the petitioner's personal contacts 
is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether they 
support the alien's eligibility. See id at 795. Thus, the content of the writers' statements and how they became 
aware of the petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, independent 
evidence of achievements in the field that one would expect of a chef who has achieved a reputation as leading, 
well-known or outstanding in the culinary field. Such letters are not a substitute for objective evidence of the 
alien's achievements and recognition as required by the statute and regulations. The nonexistence of required 
evidence creates a presumption of ineligibility. 8 C.F.R. § 103 .2(b )(2)(i). Primary evidence of achievements and 
recognition is of far greater probative value than the opinions of one's professional acquaintances. 
We also recognize that the beneficiary has received a "Best Chef Award from the 
Government ofIndia, Industry of Tourism, and the award or title "Master Chef 2000." As discussed above, 
the petitioner has provided confirmation of the beneficiary'S receipt of the awards, but failed to provide any 
supporting explanation or documentation with~ respect to the significance of these awards and the context in 
which winners and nominees are chosen. As such, we have no basis on which to conclude that such prizes 
constitute "significant recognition for achievements." 
Based on the foregoing, the petitioner has not submitted evidence that satisfies the criterion af 8 C.F.R. 
214.2(0 )(3)(iv)(B)(5). 
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 
. r 
The petitioner has offered the beneficiary an annual salary of $72,000. In tpe request for evidence issued on 
November 18,2009, the director observed that no evidence was submitted to establish that this is a high salary for 
a chef positioh in New York. In response, the petitioner submitted salary information for Chefs, Head Cooks and 
Food Preparation and Serving Supervisors from the U.S. Bureau of Labor Statistics Occupational Outlook 
Handbook, 2010-11 Edition. According to this information, the highest 10 percent of chefs and head cooks 
nationwide earned more than $66,680 annually. 
'e> 
Page 14 
The director determined that the proffered salary is a "high salary," but noted that no other criteria were satisfied. 
The AAO disagrees with the director's fmding that $72,000 is a "high salary" for a chef working in the proposed 
geographic area of employment. Available wage information for the New York metropolitan area indicates that 
many chefs in New York earn well above the national 90th percentile figure provided in the Occupational Outlook 
Handbook. Specifically, according to the Foreign Labor Certification Online Wage Library, a Level 2 chef in the 
. . / 
New York metropolitan area earned $63,024, a Level 3 chef or head cook earned $80,933, while the Level 4 
wage was $98,842. 3 Therefore, the beneficiary's proffered salary in 2009 fell between the average wage for a 
Level 2 and Level 3 chef in the area of proffered employment. The wage 'does not appear to be a particularly 
"high salary" for a chef in New York City. Accordingly, the petitioner has not established that the beneficiary 
meets the evidentiary criterion at 8 C.F.R. 214.2(0)(3)(iv)(B)(6). 
B. Final Merits Determination 
Kazarian sets forth a 'two-part approach where the evidence is frr~t counted and then considered in the context of 
a final merits determination. However, as discussed above, the petitioner established eligibility for only one of 
the criteria, of which three are required under the regulation at 8 dF.R. § 214.2(0)(3)(iv)(B). 
Notwithstanding the above, a fmal merits determination considers all of the evidence in the context of whether or 
not the petitioner has demonstrated: (1) that the beneficiary has 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 she is 
renowned, leading, or well-known in the field of arts, pursuant Ito 8 C.F.R. § 214.2(0)(3)(ii); and (2) that the 
beneficiary is recognized as being prominent in her field, pursuant to 8 C.F.R. § 214.2(0)(3)(iv). See Kazarian, 
2010 WL 725317 at *3. I 
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In this' case, we con~ur with the director's finding that the petitilner has not established that the beneficiary is 
prominent to the extent that she could be considered renowned, Ileading or well-known in the field of culinary 
arts. I 
The specific deficiencies in the . documentation submitted"by thel petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.F.R. § 214.2(0)(3)(iv)(B). It is claimed that the beneficiary 
, has worked with and will work with chefs who are nationally ahd internationally recognized and that she has 
I 
worked in establishments that have a distinguished reputation. I However, this classification focuses on the 
beneficiary's individual achievements and recognition within the field. The petitioner has provided little evidence 
of such recognition. As emphasized throughout this decisio~,the petitioner has not provided such basic 
documentation as evidence of the beneficiary's educational qualifications, her resume, or letters from her past 
employers. The petitioner's evidence pertaining to the benefi6iary consists of two testimonial letters, two . I 
newspaper articles published 8 years prior to the filing of the petition, and evidence ofthe beneficiary'S receipt of 
I 
a Best Chef Award for the year 1999-2000. ! 
3 See FLC Wage Results, http://WWW.f1Cdatacenter.cbmloesQuiCkReSults.aspx·?area=35644&code=35-
1011.00&year=ll&source=1 (accessed on February 11,2011), copy u{corporated into record of proceeding. , 
) \' 
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Page 15 
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As discussed above, the favorable opinions of experts in the fitd, while not without evidentiary weight, are 
not a solid basis for a successful extraordinary ability dlaim.4 Unusual in its specificity, section 
101(a)(15)(O)(i) of the Act clearly requires "extensive documdntation" of the alien's achievements. Again, 
USCIS may, in its discretion, use as advisory opinions statemerlts submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. at 795. However, USCISlis ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. , . I 
The AAO emphasizes that four out of the six criteria set forill at 8 C.F.R. § 214.2(0)(3)(iv)(B) require the 
petitioner to submit various types of published materials to establi1sh the beneficiary's recognition, such as critical 
I 
reviews, advertisements, publicity releases, newspaper, magazine or. trade journal articles. Therefore, it is 
significant that the petitioner has submitted little published evidedce regarding the beneficiary with the exception 
of two ,brief mentions of the beneficiary in newspapers. Abserlt evidence that the regulatory criteria are not 
applicable to the beneficiary's occupation, pursuant to 8 C.F.R. §1 214 .2(0)(3)(iv)(C), the petitioner must submit 
some published materials "about" the beneficiary in order to establish her eligibility for this classification. It is 
not reasonable to include the beneficiary among the group of chef~ recognized in the field as leading, renowned or 
well-known if the petitione~ does not establish that she has receivJd significant independent recognition based on 
her reputation or achievements. I 
Further, even if we found that the beneficiary had achieved the rlqUisite recognition in the' culinary field in the I . 
past, there is no evidence of how she sustained that reputation during seven years preceding the filing of the 
petition, during which time she was continuously in the United States in H-4 status. 
I 
Therefore, the conclusion we reach by considering each evideJtiary criterion separately is consistent with a 
review of the evi'dence in the aggregate. Even in the aggregate, ilie evidence does not distinguish the beneficiary 
as a chef who has achieved a level of distinction to the extent that IShe can be deemed to be renowned, leading, or 
well-known in the field of culinary arts. 8 C.F.R. § 214.2(0 )(3)(ii)! Accordingly, the appeal will be dismissed. 
Nothing in the decision of the AAO should be seen as an attem~t to minimize the be~eficiary's talent or past 
accomplishments or as a comment on the criteria used by the petitioner to select persons for positions. 
I 
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4 Letters may gene~ally be divided into two types of testimbnial evidence: expert opinion evidence and 
written testimonial evidence. Opinion testimony is based on ohe's well-qualified belief or idea, rather than 
direct knowledge of the facts at issue. Blacks Law DictionJry 1515 (8th Ed. 2007) (defining "opinion 
testimony"). Written testimonial evidence, on the other hand, isltestimony about whether something occurred 
or did not occur, based on the witness' direct personal knowledge. Id. (defining "written testimony"); see 
also id at 1514 (defining "affirmative testimony"). ! 
I 
Depending on the specificity, detail, or credibility of a letter, USCIS may give the document more or less 
persuasive weight in a proceeding. The Board ofImmigrationlAppeals (the Board) has held that testimony 
should not be disregarded simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 
1332 (BIA 2000) (citing cases). The Board also held, howev~r: "We not only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a there! is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIPi. 1998). 
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Further, the AAO once again emphasizes that many of the ~etitioner's claims regarding the beneficiary's 
credentials simply failed on an evidentiary basis. I 
ill. Consultation Requirement 
I 
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The remaining issue addressed by the director is whether the petitioner submitted a written advisory opinion from 
the appropriate consulting entity or entities, pursuant to 8 C.F.R. ~214.2(0)(2)(ii)(D). The regulation at 8 C.F.R. § 
I 
214.2(0)(5)(i)(A) provides that consultation with an appropriate U.S. peer group (which could include a person or 
persons with expertise in the field), labor and/or management orgkization regarding the nature of the work to be 
done and the alien's qualifications is mandatory before a petition fJr an 0-1 or 0-2 classification can be approved. 
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The petitioner submitted a peer opinion letter from ••••• 1 ••••••••••••••• and 
provided substantial evidence of their qualifications as experts in fudian Cuisine. 
. I 
The director determined that the petitioner did not submit evi1dence to satisfy the consultation requirement 
because it failed to submit an advisory opinion from "an appropiiate association or entity." The regul~tion at 8 
C.F.R. § 214.2(0)(5)(i)(A) plainly states that a U.S. peer group n\ay include "a person ... with expertise in the 
field." Therefore, the director had no basis, for insisting that the: petition submit a peer group opinion from an 
"association or entity." Nevertheless, the petitioner has submitted a "no objection" letter from the American 
I 
Culinary Federation in support of the appeal. The AAO will withdraw the director's determination with respect to 
this issue. ! 
In visa petition proceedings, the burden of proving eligibility f1 the benefit sought remains entirely with the 
Petitioner. Section 291 of the Act, 8 U.S.C. § 136l. Here, that burtlen has not been met. .' I 
ORDER: The appeal is dismissed . 
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